Strategic Dodging of ESA Listing Determinations

Abstract

Before an at-risk animal or plant species may find shelter under the Endangered Species Act (ESA), the species must first be “listed” as endangered or threatened. Simply put: No listing, no protection. This all-or-nothing trigger places considerable significance on listing decisions. A decision to list can elicit the full force of the ESA’s “pit bull” regulatory authorities and, potentially, result in onerous regulatory constraints on land uses. A decision not to list can continue the status quo and, potentially, result in species extinction. Given the great stakes, it’s not surprising that listing determinations create a focal point for controversy and litigation. This article examines how listing decisions have potential to significantly benefit at-risk species or to subvert mandated statutory protections.

Keywords: ESA, Endangered Species Act, Species, Listing, Candidate Species, Candidate Conservation Agreements