A Least Bad Approach For Interpreting ESA Stealth Provisions

56 Pages Posted: 15 Dec 2009

See all articles by Madeline June Kass

Madeline June Kass

Thomas Jefferson School of Law; Seattle University School of Law

Abstract

Scholars have come to recognize the existence of certain stealth-like provisions neatly tucked within the text of the federal Endangered Species Act ("ESA"). At the time of enactment, these provisions (if not invisible to Congress) appeared at most innocuous or insignificant. As originally written, section 7 of the ESA constitutes one such stealth provision. Inconspicuously titled "Interagency cooperation," the provision seemed little more than a humble procedural hoop to agency action. Judicial statutory interpretation, however, clarified that this seemingly docile procedural requirement in fact contained a formidable substantive mandate of the Act. A second stealth provision resides in section 8a of the ESA. Modestly titled "Convention implementation," the name suggests little more than administrative direction. However, closer inspection reveals that the provision potentially packs more than procedural minutia. With escalating species losses worldwide, there seems little doubt that future litigants will look to apply this provision in aid of biodiversity protection and species conservation. At such time, the federal courts will be forced to grapple, yet again, with the interpretive dilemma of an ESA stealth provision. This Article sets out an approach for how ESA stealth provisions might be interpreted to achieve principled outcomes in such situations.

Keywords: Endangered Species Act, stealth provisions, legislative history, statutory interpretation, biodiversity, species conservation

JEL Classification: K10, K32

Suggested Citation

Kass, Madeline June and Kass, Madeline June, A Least Bad Approach For Interpreting ESA Stealth Provisions. William & Mary Environmental Law and Policy Review, Vol. 32, No. 2, p. 427 2008, Thomas Jefferson School of Law Research Paper No. 1522981, Available at SSRN: https://ssrn.com/abstract=1522981

Madeline June Kass (Contact Author)

Seattle University School of Law ( email )

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Thomas Jefferson School of Law ( email )

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619-961-4258 (Phone)

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