States Challenge Endangered Species Act Expansion
by Sean Stein, Staff Contributor
Industrial expansion necessarily requires sacrifice from the natural world. And throughout the history of the United States, the consequences of that sacrifice have been devastating: various species of fish, wildlife, and plants have been rendered extinct by economic growth and development unhindered by adequate conservation efforts. Today, other species are so depleted in number that their very existence hangs in the balance between the human instinct to develop and the human need to protect.
In 1973 Congress formally recognized the dangers of continuing this destructive path and promulgated the Endangered Species Act (“ESA”) to help “protect and recover imperiled species and the ecosystems upon which they depend.” When passing the ESA, “Congress viewed habitat loss as a significant factor contributing to species endangerment.” And in 2016, under the Obama Administration, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service modified the ESA through their rulemaking authority, making minor edits to the scope and purpose of the ESA and significantly expanding the definition of “critical habitat.”
The designation of a “critical habitat” for an endangered species ensures the Federal Government considers the effect of Federal action on an endangered species’ habitat and avoids any actions that are likely to lead to that species’ destruction. When the ESA was passed in 1973, the term “critical habitat” encompassed “the specific areas within the geographical area occupied by the species…on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” This definition protected land currently occupied by the species, but the 2016 rulemaking allows the consideration of an additional type of land when determining “critical habitat:” “specific areas outside the geographical area occupied by the species at the time it is listed…”, including places where “species presence or habitats are ephemeral in nature, [and] species presence is difficult to establish through surveys (e.g., when a plant’s “presence” is sometimes limited to a seed bank), or protection of unoccupied habitat is essential for the conservation of the species.”
It is to this expansion that more than eighteen states object, calling the rule “an unlawful attempt to expand regulatory authority and control over State land and water.” Because the statute gives the Secretary of Agriculture the authorization to acquire the land that consists of a critical habitat, many states fear their private property owners will be subject to losing land they lawfully purchased and maintained, or that entire states run the risk of being made a habitat for certain species.
While the states employ an argument in the extreme, they contend their fears are not necessarily unfounded. When the ESA was first passed, its effects were immediately seen through Tennessee Valley Authority v. Hill, in which the construction of a dam was halted when the Little Tennessee River was declared a critical habitat of the snail darter, an endangered species. Deeming the value of an endangered species “incalculable” the Supreme Court upheld the protection of this critical habitat, even though “[s]ome $53 million would be lost in nonrecoverable obligations.” This decision was made under the original, more restricted definition of “habitat.” Today, under a literal reading of the rulemaking, not only would the federal government be prevented from building a dam where the snail darter currently lives, but any other area that the Secretary of the Interior or the Secretary of Commerce deems “essential for the conservation of the species” would be off limits as well.
However, the days when the ESA truly restricted the logging of old-growth forests or the construction of multi-million dollar dams seem to be in the past. Actual data suggests that these States may be hunting a paper tiger, for the ESA has only blocked or canceled less than half a percent of the projects jeopardizing endangered wildlife. Whether President Trump will roll back the recent federal rules remains to be seen, and might be separate from the question of whether he should. The new, expanded regulation may cost the states and private land owners money by blocking or delaying the use and development of their properties, but that might be a worthy price to save the existence of countless “incalcuabl[y]” valuable fish, wildlife, and plants.
 Endangered Species Act of 1973, 16 U.S.C. §1531(a)(1) (2000).
 Listing Endangered and Threatened Species and Designating Critical Habitat; Implementation Changes to the Regulation for Designating Critical Habitat, 81 Fed. Reg. 7,414, 7,414 (Feb. 11, 2016) (to be codified at 50 C.F.R. pt. 424).
 Peter Urban, States Attack U.S. Endangered Species Act Rules, Scientific American (March 7, 2017), https://www.scientificamerican.com/article/states-attack-u-s-endangered-species-act-rules/.
 Listing Endangered and Threatened Species and Designating Critical Habitat; Implementation Changes to the Regulation for Designating Critical Habitat, 81 Fed. Reg. at 7414.
  Listing Endangered and Threatened Species and Designating Critical Habitat; Implementation Changes to the Regulation for Designating Critical Habitat, 81 Fed. Reg. at 7415.
 16 U.S.C. § 1532(5)(A)(i).
 16 U.S.C. § 1532(5)(A)(ii).
 81 Fed. Reg. at 7415.
 Barbara Hollingsworth, 18 States Sue Feds Over Expanding ‘Critical Habitat’ to Areas with No Protected Species, cnsnews.com (Dec. 9, 2016, 5:48 PM), http://www.cnsnews.com/news/article/barbara-hollingsworth/18-states-sue-feds-over-expanding-critical-habitat-areas-no (internal quotation omitted).
 16 U.S.C. § 1534(a)(2).
 See Urban, supra note 4.
 Hollingsworth, supra note 10.
 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).
 Id. at 188.
 Id. at 166.
 16 U.S.C. § 1532(5)(A)(ii).
 Jacob W. Malcom & Ya-Wei Li, Data Contradict Common Perceptions About A Controversial Provision of the US Endangered Species Act, 112 PNAS 15844, 15844 (2015).
 See Id.
 See Urban, supra note 4.
 Tennessee Valley Authority, 437 U.S. at 188.