The Divides of Environmental Law and the Problem of Harm in the Endangered Species Act

Abstract

This article explores the data gaps between what the law demands and what science supplies as a way of understanding the structural divides in environmental law. Despite important characteristics that separate pollution control from resource management subject matter, other dimensions distinguish among statutes and programs in the field. In particular, regulatory approaches and legislative attributes highlight similarities and differences that are obscured by a subject matter focus. The article illustrates how insights from across the divides can help resolve some data gaps and improve information policy.

In particular, the article focuses on the problem of harm in the Endangered Species Act ("ESA"): how courts should determine whether to issue an injunction stopping a habitat disturbing activity. Currently, courts adapt common law proximate cause principles to decide when to issue injunctions under the harm prohibition of the ESA. The article discusses the data gap problem with this application of common law to the framework of the ESA. It shows how lessons from across the subject matter divide better serve the ESA's regulatory approach. The article recommends that courts and implementing agencies borrow from pollution control programs to interpret the ESA's prohibition on harm as a trigger for permitting rather than an outright ban.

Keywords: Endangered Species Act, Environmental Law, Information, Science and the Law, Harm, Take, Habitat