Shell Games: Vicarious Liability of State and Local Governments for Insufficiently Protective Regulations Under the Esa

Abstract:     
Three federal circuit courts have held that local and state governments can be in violation of the Endangered Species Act if their regulations do not sufficiently restrain third-party actions that threaten endangered species. These courts have not only struck down state and local statutes, but have imposed affirmative obligations on state and local governments, under what amounts to a doctrine of vicarious liability.

This paper reviews the development of this doctrine and shows that it has little support in either the statutory framework of the ESA or in regulatory interpretations of the Act. It then examines constitutional issues implicated in the governmental vicarious liability doctrine, including problems of Article III standing and concerns with commandeering and redressability.

Number of Pages in PDF File: 35

Keywords: Endangered Species Act, vicarious liability, commandeering, loggerhead turtle

JEL Classification: K32

Accepted Paper Series