The Leaky Ark

By Jonathan Adler
Professor and Director of the
Center for Business Law and Regulation
at Case Western Reserve University School of Law.

The Endangered Species Act (ESA) was enacted with much fanfare and little controversy in 1973. At the time, few anticipated how broadly the law would affect both government and private activities.¹ Yet ever since its celebrated passage, the nation’s premier wildlife conservation law has been a source of conflict and controversy; it has been rightly described as “one of the most contentious of our federal environmental laws.”² The ESA is a focus of controversy in part because of its strength. Indeed, the ESA may be the most powerful environmental law in the nation.

For all the Act’s strength, it has not been particularly effective at conserving species. Although it is the “most comprehensive of all our environmental laws,”³ it is not, by any measure, the most successful. Even strong advocates of regulatory measures to protect endangered species habitat acknowledge that “no one … suggests that the federal ESA is realizing congressional intent or that it has been implemented rationally or responsibly.”⁴ A 2008 review concluded that the best one could say is that “the scientific question of whether the ESA works effectively to protect species remains open.”⁵...continued

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