OOS 13-1
The Endangered Species Act: A flexible statute that permits innovation
The Endangered Species Act is a simple statute motivated by an ethical conclusion that we should not allow species to go extinct. Reduced to its core provisions, the Act defines two categories of species that fall within its purview -- endangered and threatened -- and specifies a procedure for identifying those species. Following listing, the Act mandates prohibitions designed to prevent their extinction and actions designed to facilitate their recovery. If the extinction prevention and recovery actions are successful, the Act provides a process for removing the species from the list of endangered and threatened species.
Obviously, things become more complicated quickly. But focusing on the complexity can obscure the simplicity of the Act’s basic structure -- and, more importantly, the flexibility that simplicity can provide.
Results/Conclusions
In the law -- particularly in the law of administrative agencies -- flexibility is called "discretion." An agency such as the Fish and Wildlife Service has discretion to the extent that Congress has not spoken on a question. Simpler statutes have fewer answers. Discretion, of course, is not unbounded, and it is the courts that determine to what extent Congress has spoken, but there is a rough correlation between simplicity and flexibility.
Habitat Conservation Plans (HCPs), Candidate Conservation Agreements (CCAs), and a host of other conservation management agreements are examples of the flexibility that the Endangered Species Act permits. I will examine these conservation management agreements as examples of agency discretion and discuss the type of statutory language that permits flexibility. I will conclude with suggestions of additional approaches that the Fish and Wildlife Service might develop to improve species’ prospects for recovery.