The Road to Recovery: A New Way of Thinking About the Endangered Species Act
78 Pages Posted: 13 Dec 2014
Date Written: December 10, 1996
As applied, the Endangered Species Act has failed proponents of biological diversity in two significant ways. First, although the Endangered Species Act has made a difference, experience suggests it has been an inadequate tool for preserving biological diversity. The Endangered Species Act prevents species from disappearing entirely. To date, however, it has done relatively little to bring species back from the brink of extinction and ensure their continued survival. Second, and perhaps more significant, the Act has proved an inadequate educational tool. Rather than convincing the American people of the need to preserve biological diversity, the Act has apparently convinced many that endangered species preservation is just another onerous form of federal regulation. I will suggest that the problem is not with the text or intent of the Endangered Species Act itself, but with the way it has been used and perceived during the last two decades. Litigants, courts, and legal scholars have emphasized the enforcement of the Act's specific prohibitions at the expense of the Act's larger purpose. I will argue that one legal key to creating a more politically acceptable and biologically effective Endangered Species Act lies in emphasizing the Act's concept of "recovery." The concept of recovery I will champion in this article draws meaning from the recovery planning section of the Endangered Species Act, but is broader in scope than the mandates the recovery planning section imposes. I will suggest that litigants and courts should pay more attention to implementing the recovery planning section. More significant, I will argue that the concept recovery has begun to and should continue to inform the interpretation of sections 7 and 9 of the Endangered Species Act. In other words, the concept recovery should be the lens through which we view all of the Act's mandates.
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