Critical Habitat and the Challenge of Regulating Small Harms

Abstract

This Article investigates how the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on "adverse modification" of "critical habitat." That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 "biological opinions," interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, the Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification prohibition to provide habitat protection. It also assesses the extent to which they are providing habitat protection by invoking other ESA provisions. The Article concludes that agency practice and some judicial decisions substantially depart from statutory requirements, with problematic results, but that the agencies still are providing substantial habitat protection through other means. It then considers the implications of these findings, first for ongoing debates about ESA implementation and reform and then for broader discussions about legal strategies for responding to small environmental harms and the incremental degradation they cause.