Predictions and Prescriptions for the Endangered Species Act

Abstract

The thirtieth anniversary of the enactment of the modern Endangered Species Act (ESA) offers an irresistible excuse to suggest changes that are needed to set the statute, and the larger project of environmental protection, on course for greater effectiveness. The 1973 ESA is novel in its approach and reach, in that it reflects both the resource management and pollution control traditions in environmental law. Its evolution indicates broader trends in the legal landscape of environmental law.

Making predictions about the future of the ESA is a daunting task. Most predictions made thirty years ago about the statute proved to be wrong. The existence of three inconsistent, but equally plausible stories describing the past thirty years of environmental law history compound the problem, providing little basis upon which to project past trends onto the future.

More useful than venturing guesses about the future is describing what changes we need to make in order to fulfill the promise of the ESA. Rather than speculating about the statute's future path, we must carefully plan that path with prescriptions for reform in three major areas: better funding for the ESA program, technology-based limitations to control habitat degradation, and preventative care for biodiversity.

Keywords: Endangered Species Act, Environmental Law, Natural Resources Law

JEL Classification: K32