Copyright (c) 1993 University of Colorado Law Review, Inc.
University of Colorado Law Review
THE ENDANGERED SPECIES ACT AND ITS IMPLEMENTATION BY THE U.S. DEPARTMENTS OF INTERIOR AND COMMERCE
64 U. Colo. L. Rev. 278
Oliver A. Houck *
"The Endangered Species Act was intended as a shield for species against the effects of major construction projects like highways and dams, not a sword aimed at the jobs, families and communities of entire regions like the Northwest," Mr. Bush said. "It's time to put people ahead of owls."
... Mr. Bush assailed the act as a "broken" law that he pledged "will not stand." 1
The Endangered Species Act (ESA), 2 America's most controversial environmental law, may also be its most misunderstood. It will be reviewed, once again, 3 for reauthorization in 1993, on the widespread reputation that its provisions are inflexible and stringently applied. 4 The facts are otherwise.
This is a study of the Act's four major provisions that restrain federal and private actions from jeopardizing threatened and endangered species: Sections 4, 7, 9, and 10. 5 These sections require, in language remarkably plain for federal environmental legislation, that endangered species be identified, that their essential habitat be designated, that federal agencies not jeopardize these species or adversely modify their habitat, that federal actions likely to jeopardize be exempted only in extraordinary circumstances, that plans be prepared and implemented for species recovery, and that private parties not harm these species without undertaking remedial planning. Each of these sections is a stage in the process. Each is described in language that has been clarified and strengthened over twenty years of congressional review and amendment. 6 Together, they represent a blueprint ...
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