8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10815
R E S P O N S E
Wyman’s Rethinking the ESA: Right
Diagnosis, Wrong Remedies
by Steven P. Quarles
Steve Quarles is a partner in, and former Chair of the Environment and Natural Resource Group of, the law
rm of Crowell & Moring LLP. His practice focuses on federal lands and wildlife law. A graduate of Princeton
University and Yale Law School, Steve has served as special counsel to the U.S. Senate Energy and Natural
Resources Committee and Deputy Under Secretary of the U.S. Department of the Interior.
Katrina Wyman1 has penned a bold, provocative, and
innovative critique of the capability of the Endangered
Species Act (ESA or Act)2 to meet the challenges of
an increasingly human-dominated world. Bold because the
ESA, perhaps more than any other environmental law, has
impassioned cha mpions who disfavor dissent. It is no easy
task to critique a law with the truly noble mission to preserve
life other than our own, particularly when the law’s basic
premise is that the mission’s success is critically dependent
on abundant and altruistic actions by u s. Provocative because
the author ask s us to acknowledge that we c annot achieve
that lofty mission through the ESA in its present form. Inno-
vative because the author asks us to consider recasting that
mission in terms both more modest (reduce automatic goal of
recovery for each listed species) and more ample (protect bio-
diversity, not just specic species) and explore novel ways to
contribute to the mission’s success both within and beyond
the connes of the ESA.
Anyone who assumes such a dicult task will surely draw
doubts from kibitzers. Here is one such kibitzer and a few
such doubts.
To summarize this Comment, I believe that Wyman has
provided the right diagnosis, but not necessarily the right
remedies. Our expectations for the ESA must be reduced
even as we pursue biodiversity protection, but once reduced
may be accommodated in large measure without the radi-
cal surgery on, and search for new legal authority beyond,
the ESA suggested by the author. Indeed, certain remedies
drawn largely from the existing text of the ESA may be
more politically palatable and less costly, and therefore more
achievable, even if they do not accomplish the degree of bio-
diversity protection most desired.
1. Katrina Miriam Wyman,
, 40 ELR (E. L. P’ A. R.) 10803 (Aug. 2010) [hereinaf-
ter Wyman ELPAR]. A longer version of this Article was originally published
at 17 N.Y.U. E. L.J. 490 (2008)) [hereinafter Wyman full-length].
2. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
I. The Diagnosis
Despite a few quibbles over the author’s description of the
ESA—mistakes attributable I am sure to the desire for brev-
ity in introductory material3—I believe the underlying mes-
sage about the constraints on the ESA’s capacity to fully serve
3. (i) e Article states that the “ESA was set up to protect imperiled biodiver-
sity.” Wyman full-length, supra note 1, at 493. Were that so! Instead, species
and habitats are considered virtually in isolation under specic statutory listing
or designation standards and in separate rulemakings. Had the law focused on
biodiversity instead of individual species and their particular habitats, it might
be more vital and viable today. ere is little to nothing in the law’s legisla-
tive history to suggest that Congress understood the concept of biodiversity
when it adopted this species-by-species and habitat-by-habitat approach. In
fact, Wyman notes that “[t]he term biodiversity postdates the passage of ESA.”
Id. at 493 n.11.
(ii) e Act may encourage designation of critical habitat “upon [spe-
cies] listing.” Id. at 494. However, it allows delays of either up to one year if
the critical habitat “is not then determinable” or of an unspecied period if it
is “essential to the conservation of [the] species” that the listing decision be
“promptly published,” and no designation whatsoever if designation would not
be “prudent.” 16 U.S.C. §1533(b)(6)(C).
(iii) Particularly problematic—without further explanation (which ad-
mittedly is partially given later, on p. 503)—is the statement that ESA §9(a)
(1)(B) prohibits “taking the species’ habitat.” Wyman full-length, supra note 1,
at 494. e most common misperception I nd in my practice is that the ESA
prohibits “take of habitat.” To the contrary, the U.S. Fish and Wildlife Service
(FWS) regulation that denes one form of “take” to include habitat alteration
still requires that the species itself must be taken by that habitat impact before
“take” can be established (“habitat modication or degradation where it actu-
ally kills or injures…” a listed species). 50 C.F.R. §17.3, denition of “harm”;
see Babbitt v. Sweet Home Chapt. of Comtys. for a Great Oregon, 515 U.S.
687, 692 n.2, 25 ELR 21194 (1995).
(iv) e Article asserts that a “species that is listed as threatened gets the
benet of all [of the Act’s] protections except for §9 [including its “take” prohi-
bition], but the FWS can apply §9 or develop more nely grained prohibitions
to protect the species.” Wyman full-length, supra note 1, at 498. is statement
is at best misleading, as FWS (unlike the National Marine Fisheries Service)
has promulgated a rule that automatically applies all §9 prohibitions to each
threatened species—previously or subsequently listed—unless a species-specic
rule is adopted that removes or reduces the “take” or other prohibition. 50
(v) Of particular relevance to this Article is the description of the recov-
ery plan. e Article states that “the ESA requires the FWS to develop and
implement recovery plans.. ..” Wyman ELPAR, supra note 1, at ### n.17
(citing 16 U.S.C. §1533(f). “[D]evelop”—yes, unless the plans are found to
“not promote the conser vation of the species.” 16 U.S.C. §1533(f). But not
“implement”—abundant case law, legislative history, and administrative rul-
ings make clear that recovery plans have virtually no force and eect of law and
certainly may not be enforced by FWS against other federal agencies or other
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
