State Imperiled Species Legislation

45 Pages Posted: 23 Feb 2018 Last revised: 26 Mar 2018

See all articles by Robert Fischman

Robert Fischman

Indiana University Maurer School of Law

Vicky Meretsky

Indiana University

Willem Drews

Knox County Soil & Water Conservation District

Katlin Stephani

Indiana University

Jennifer Teson

Lancaster County Conservancy

Date Written: 2018

Abstract

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could — in theory — accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All but four states possess statutory programs to identify species on the brink of extinction. Most of them include both animals protected under the ESA and wildlife imperiled just within the boundaries of the state. Thirty-four states legislate imperiled plant protection programs. States generally fail to prohibit habitat impairment by private parties, lack permit programs to minimize incidental harms to species and spur habitat conservation, and do not restrict state agency actions that undermine species recovery. Compared to the key regulatory programs of the ESA that prompt stakeholders to collaborate on conservation, state laws — in general — reflect a more permissive attitude. Though state laws, in the aggregate, only weakly support cooperative federalism, some state legislative provisions are very strong. Illinois, Massachusetts, and Wisconsin even go beyond the ESA in their protective measures. Major funding increases to pay for conservation measures could overcome weak agency regulatory authority, but prospects for a spending spree are dim. Therefore, some state legislative reform will be necessary to implement stronger cooperative federalism under the ESA.

Keywords: Endangered Species Act, Federalism, Environmental Law, Natural Resources Law, state law

Suggested Citation

Fischman, Robert and Meretsky, Vicky and Drews, Willem and Stephani, Katlin and Teson, Jennifer, State Imperiled Species Legislation (2018). Environmental Law, Vol. 48 (2018), Indiana Legal Studies Research Paper No. 386, Available at SSRN: https://ssrn.com/abstract=3128244

Robert Fischman (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Vicky Meretsky

Indiana University ( email )

107 S Indiana Ave
100 South Woodlawn
Bloomington, IN 47405
United States

Willem Drews

Knox County Soil & Water Conservation District

1025 Harcourt Rd
Mt Vernon, OH 43050
United States

Katlin Stephani

Indiana University

107 S Indiana Ave
100 South Woodlawn
Bloomington, IN 47405
United States

Jennifer Teson

Lancaster County Conservancy

117 S West End Ave
Lancaster, PA 17603
United States

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