AuthorRohlf, Daniel J.
  1. INTRODUCTION 686 II. BACKGROUND 690 A. Biology 690 B. Legal 693 1. Twin Prohibitions & Procedures of Section 7(A)(2) 693 2. Evolution of the Jeopardy & Adverse Regulatory Definitions 697 3. Conservation Track Record of 7(A)(2) Protections 702 III. THE FIX 705 A. What Actions May "Jeopardize" Listed Species? 706 1. Defining What "Jeopardize"Means 706 2. Scope of a "Jeopardize" Analysis 720 B. What Actions are Likely to Destroy or Adversely Modify Designated Critical Habitat? 725 IV. FROM THE EMERGENCY ROOM TO RECOVERY 732 A. Practical Effects of Improving the "Jeopardize" Standard 733 B. Practical Effects of Improving the "Destruction or Adverse Modification Standard" 739 C. Toward 30X30 and Beyond 742 V. CONCLUSION 746 I. INTRODUCTION

    Consider the following nightmare scenario: Paramedics rush an accident victim to a hospital's emergency room, her life threatened by serious injuries. Examining the patient, the attending physician renders a diagnosis with a twist. "She's in bad shape," the doctor tells the victim's distressed family members, "but it's almost noon and she probably won't be too much worse after my lunch break. When I come back in a couple of hours or so I'll do my best to save her."

    Though such a scene seems inconceivable, it concisely describes the United States' longstanding policy toward protections for listed species set out in section 7 of the federal Endangered Species Act (ESA). (1) For decades, commentators, reporters, and government officials have analogized the ESA's efforts to set forth a program for halting and reversing many species' slides toward extinction to an emergency room for imperiled creatures. (2) Lawmakers imposed prohibitions on the federal government itself as a centerpiece of the statute; section 7 of the ESA bans all discretionary federal actions that "jeopardize the continued existence" of species listed as threatened or endangered, or that result in the "destruction or adverse modification" of specific habitat for these species formally designated as "critical." (3) While lawmakers envisioned these restrictions as "the institutionalization of ... caution," (4) implementation of the statute has instead allowed a steady drumbeat of adverse impacts from federal actions that incrementally push protected species further toward the brink. (5) The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS), the two expert agencies responsible for assessing other federal agencies' compliance with section 7's prohibitions (collectively the Services), routinely sanction actions that negatively affect both listed species and the habitat designated as essential to their conservation--leaving species' recovery to an often unspecified, uncertain, and distant date in the future. (6)

    Though this dangerous and counter-intuitive interpretation of the ESA's central protections for listed species has persisted for years--through Executive Branch administrations headed by both Democrats and Republicans--President Biden's promise to emphasize biodiversity conservation as a key component of U.S. efforts to battle climate change provides a window of opportunity to return to the lawmakers' emphasis on urgent efforts to both stem threatened and endangered species' declines and make steady progress toward recovering listed species. (7) This Article sets out a means for accomplishing these goals by implementing the law as Congress arguably intended. Significantly, this path requires no legislative changes to section 7 itself and only modest clarification of existing regulations. At the same time, it necessitates a change in the outlook and implementation policies of many federal agencies. Led by FWS and NMFS, all arms of the federal government must recognize the ESA's role as prescribing urgent "emergency room" measures for imperiled species and forego the predominant current approach of procedural hoops and modest tweaks that amount to the conservation equivalent of "take a couple of aspirin and call me in the morning."

    The extinction crisis, of course, extends far beyond U.S. borders. (8) The start of a new decade in 2020 saw increasing global concerns about the tenuous state of the planet's biodiversity, set against a backdrop of the related "omnicrises" of climate change and the covid pandemic. (9) Recognizing that cooperative efforts to improve the status of biodiversity worldwide have stumbled badly, nations at the 2022 Convention on Biological Diversity (CBD or Convention) adopted a new Global Biodiversity Framework setting forth steps aimed at improving the deteriorating state of biodiversity worldwide and progressing toward the 2050 vision of living in harmony with nature. (10) One of the Framework's "action targets" has garnered significant interest and media attention--a call to protect at least 30% of both terrestrial and marine areas across the globe by 2030 "through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures." (11) Despite leading the only nation on the planet that has not ratified the Convention (along with the Holy See), (12) President Biden has nevertheless embraced this so-called "30x30" benchmark for the United States as part of his plan for battling climate change. (13) Days after his inauguration, Biden ordered the Secretary of Interior, in consultation with other cabinet officials and agency heads, to outline a path for conserving additional lands and waters so that 30% enjoy some degree of protection by 2030. (14) An initial report to the National Climate Task Force a few months later stressed that loss of species and biodiversity poses "grave risks to the abundance, resilience, and accessibility of the natural resources that are at the foundation of America's economy and well-being." (15)

    Biden's call to protect and restore biodiversity sensibly emphasizes forward progress--an increase in protected areas to conserve species and their habitat. (16) A similar push to reform the current implementation of the ESA's section 7(a)(2) prohibitions would advance 30x30 goals by largely abandoning the biologically dangerous and legally defective idea that things can get worse for endangered and threatened species before they get better. An interpretation of section 7(a)(2)'s ban on federal actions that "jeopardize" listed species that is more in line with the statute and its legislative history--as well as consistent with sound science--would prevent actions that push species below their "survival" threshold, as well as avoid appreciably delaying their recovery. (17) Additionally, contrary to long-time rationalizations for piecemeal loss of habitat essential for recovering listed species, section 7's prohibition on destruction or adverse modification of designated critical habitat should mean what it says. At the same time, the statute does provide a measure of flexibility by permitting assessment of such impacts across critical habitat designations as a whole that results in a "no net loss" standard for physical and biological features essential for species' recovery. (18)

    Although the revisions in implementing section 7 discussed below would have no effect on most federal projects and authorizations that do not adversely affect listed species or designated critical habitat, the common-sense reading of section 7 proposed here would undoubtedly impose additional limitations or costs on some agency activities and authorizations. This said, the benefits would outweigh the costs; as President Biden has himself emphasized, increasing protections for biodiversity would produce large-scale environmental improvements, including reducing carbon emissions and enhancing climate resilience. (19) Moreover, familiar administrative techniques and market mechanisms for implementing compensatory mitigation would provide additional economic opportunities while efficiently conserving imperiled species and their habitat.

    This Article explains how the Services should adjust their interpretation of section 7(a)(2)'s twin prohibitions to increase protections for listed species by dispensing with the idea, in most cases, that federal actions can continue to have incremental negative impacts on those species and their designated critical habitat. Part II provides a brief overview of section 7(a)(2) and how the Services have interpreted it over time, including recent regulatory changes under the Trump Administration. Part III explains how to implement section 7's prohibition on federal actions that jeopardize listed species, as well as the law's ban on agency actions that destroy or adversely modify critical habitat, in a manner that both hews more closely to the statute and makes more sense biologically. Part IV looks at the implications of changing the longstanding approach to section 7(a)(2) and how a more conservation-oriented implementation of its prohibitions would advance U.S. efforts to achieve its 30x30 goals, simultaneously mitigating the extinction crisis and enhancing the nation's carbon reduction efforts and climate resiliency. Part V provides a brief conclusion.


    A steep decline in the overall condition of biodiversity in the United States was already well underway when Congress first created a means of legally classifying and protecting imperiled species over five decades ago. While prohibitions under section 7(a)(2) that apply to federal agencies' actions should represent some of the ESA's strongest protections for such species, interpretations limiting the scope of key elements of this part of the statute have allowed for continuing declines of many threatened and endangered species.

    1. Biology

      Providing a grim reminder of the precarious state of biodiversity in the United States, in 2021 FWS announced that 23 species protected by the ESA are now extinct. (20) This list includes several bird species from Hawai'i and Guam...

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