ENVIRONMENTAL LAW DIGEST WRITE-ON COMPETITION: EDITING SKILL TEST
Excerpt from Mary Jane Angelo, The Killing Fields: Reducing the Casualties in the Battle Between U.S.
Species Protection Law and U.S. Pesticide Law.
The Federal government currently lists 1,882 species as endangered or threatened.1 The primary
vehicle for the protection of these species is the ESA,2 recognized by many sources as “the most
comprehensive legislation for the preservation of endangered species ever enacted by any nation.” 3 The
statute’s purpose is to conserve threatened and endangered species and their habitats, for which it employs
several regulatory mechanisms.4
“Endangered species” are those in danger of extinction throughout all or a significant portion of their
range.5 “Threatened species” are those likely to become endangered “within the foreseeable future.”6
Although the statute distinguishes between these categories, species designated as either are, for the most
part, subject to the same protections. In addition to listing species as threatened or endangered, the Services
also designate critical habitat for each listed species.7
Once a species is designated as either threatened or endangered, several protections apply. First,
section 9 of the ESA prohibits the “taking” of listed species. The statute defines the term “take” broadly to
include to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any
such conduct.”8 The supreme court has upheld the Services’ interpretation of the term “harm” to include acts
that involve “significant habitat modification or degradation where...[the act] kills or injures wildlife by
1
U.S. Fish and Wildlife Service, Threatened and Endangered Species System Summary of Listed Species,
http://ecos.fws.gov/tess_public/Boxscore.do (last visited October 1, 2007) (on file with the Harvard Environmental Law Review)
2
16 USC § 1531-1544 (2000).
3
Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon. 515 U.S. 687, 698 (1995) (quoting Tennessee
Valley Authority v. Hill, 437 U.S. 153, 180 (1978). See Marcyilynn A. Burke; Klamath Farmers and Cappuccino Cowboys: The
Rhetoric of the Endangered Species Act and Why It (Still) Matters, 14 Duke Environmental Law & Policy Forum 441, 455 (2004)
(arguing that the push for ESA reform has been sold primarily on the basis of individual stories of nightmarish regulatory burdens
on small landowners)).
4
16 USC § 1531(b).
5
Id. § 1532(6).
6
Id. § 1532(20).
7
Id. § 1532(5) (defining critical habitat as the areas essential to the conservation of a species that may require special
management considerations).
8
Id. § 1532 (19).
significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.”9 Penalties for
violations of the section 9 take prohibition vary depending on whether the violation involves a threatened or
an endangered species and whether the perpetrator violated the prohibition knowingly.10
Because the prohibition on takings applies to “any person,” a Federal agency that directly kills or
injures a listed species would incur section 9 liability. The more complicated issue is the extent to which
agencies are liable for takings that occur as a result not of the agency’s own action, but through a party acting
with authorization from the agency. Although in this situation liability will depend on the precise
circumstances of the authorization, courts have generally found federal regulatory agencies liable for
authorizing activities that resulted in takes. For example, a Massachusetts state agency that issued licenses to
use specific fishing gear was liable for taking endangered whales when the gear entangled the whales.11 In
another case, EPA was liable for allowing a pesticide to be marketed that was eventually ingested by
endangered black-footed ferrets.12
9
Babbitt v Sweet Home Chapter of Communities for a Greater Oregon 515 U.S. 687, 691 (1995).
Violations can result in both civil and criminal penalty, including penalties of up to $50,000 and imprisonment for up to
one year for knowing takes of endangered species. 16 U.S.C. §§ 1540(b).
11
Strahan v. Coxe, 127 F. 3d. 155 (1st Cir 1997).
12
Defenders of Wildlife v. Adm’r, EPA, 882 F. 2d 1294 (8th Cir 1989).
10