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032416 An Ivory Tower Perspective on Endangered Species Law George Cameron Coggins AfJ an academic who has never drafted an Endangered Species Act (ESA) regulation, nor tried an ESA case, nor lobbied for an ESA cause, nor been thwaned by an ESA ruling, I conse. quently write this essay from a Kansas ivory tower (or grain elevator) perspective. Fifty million years have elapsed since the last dinosaur bit the dust, and about twenty thousand years have gone by since homo sapiens first colonized the New World. Allempts to evaluate the success of a stat- ute meant to assist and protect evolutionary processes after a mere twenty years therefore are premature, if not foolishly arrogant. Several conclusions nevenheless may be drawn at this early stage. First, several domestic species are unquestionable conservation suc- cess stories, but the overall record is mixed (and to an extent unknowable). Legally, the ESA so far has turned out to be a triumph for the rule of law as enforced through citizen suits by pri. vate allorneys general. While circumscribing administrative and developmental discretion in many important respects, the ESA has also cre- ated flexible new mechanisms for achieving its wildlife welfare purposes. Although the Act does nO! go far enough to achieve overall biodiver- sity preservation, it is still possibly the most far- reaching legal step of this nature ever under. taken by any country. The ESA is not the single, most important federal environmental statute, but-whether one applauds or deplores this turn of events- the law is now a primary obstacle to land de- velopment and related 3Cliviries in America. The Endangered Species Act of 197 J The Act. No one wi II know for certain whether the 1973 Congress fully understood what it wrought when it enacted the Endan- gered Species Act, 16 U.S.<=' $$ 1531-43 (1988). The legislative history is clear on sev. eral points: the proponents were determined to save species in danger without regard LO eco- nomic COS(; and most representatives seemed (0 be thinking primarily about such "glamou.r" species as wolves, grizzly bears, whales, and bald eagles. Congress did not visualize many of the actual land use and commercial connicts that later occurred. The legislature did, how- ever, intentionally phrase the most imponant provisions of the ESA in sweeping and near-ab- solute terms. Unlike earlier ESA versions, the operative language of the 1973 Act is not qual- ified by escape-harch terms such as "practica- ble." The Act represents a culmination of preservation thinking: Species must be pre- served even if they are of no ascertainable eco- nomic value to humans. The main ESA provisions for land use pur- poses are section 7 (consultation) and section 9 (raking). The former not only insrrucls all federal agencies to avoid jeopardizing listed species and their habitat, it also imposes on them the unique affirmative duty to "conserve" those species (Le., to take actions to increase their populations). Courts have not yet explored the outer reaches of the affirmative section 7 duty, but all courts considering the matter agree on the existence of the affirmative obligation. E.g., National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987). Congress primarily intended ESA $ 9 as a prohibition against direct harm (e.g., shooting), but courts have interpreted it to forbid some privat~ as well as governmental actions that destroy Hab- itat. E.g., Pallia I'. Hawaii Dep't oJ La"d & Natural Resources, 639 F.2d 495 (9th Cir. 1981). Most couns and some federal agencies have taken the basic preservation intent of Con. gress to heart in the recurring controversies en. gendered by endangered species law. Judicial Interpretation. The first courts to construe the ESA were uncertain about its scope and application, and some politicians and agencies were convinced that the law did not really mean what it said. The majority opinion in Ten/lessee Valley Auth. v. Hill, 437 U.S. 153 (1978) (Snail Daner), ended the confusion by imerpreting ESA $ 7 strictly and literally. Chief Justice Burger commented at length on the duty of the judiciary to enfotce the plain statutory meaning without regard to the wisdom or folly of the legislative choice. That Snail Darter case interpretation gave rise to the sobriquet for the ESA as the "pit bull of environmental law." The ensuing 1978 amendments added nine pages of procedural requirements for imple- mentation of section 7 while leaving the oper- ative substantive commands imaCL Subsequent amendments have generally strengthened the NR&E/SUMMER I qqJ proJess01. Coggins is the Tyler Professor of Law at the University of Kansas School of Law in Lawrence, Kansas. 3