Take It to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act

Abstract

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but conflicts with it. It is contrary to legislative intent and bad policy. Under it, the agencies give no consideration to the severe burdens they are placing on individuals and undermine private incentives to conserve species, to the detriment of the species the statute is intended to protect. The D.C. Circuit – the only court to consider the legality of this regulation – upheld it, on grounds that conflict with the statute, congressional intent, and misapply the standards governing deference to administrative agencies. Since that decision, the Supreme Court of the United States has issued several opinions that call its reasoning into further doubt. Therefore, the decision is ripe for reconsideration and overrule.

Keywords: Endangered Species Act, nondelegation doctrine, deference, Chevron, Chevron deference, endangered species, environment, constitutional law, delegation

JEL Classification: K23