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History & evolution, purpose, provisions, amendments, effectiveness, four major court cases & outcomes.... More...
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Paper Abstract:
History & evolution, purpose, provisions, amendments, effectiveness, four major court cases & outcomes.

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The Endangered Species Act I. Introduction The Endangered Species Act is an attempt by Congress to create and implement a comprehensive program aimed at addressing the concern of the extinction of plant and wildlife species. The Act currently in force is a culmination of almost a century of wildlife management. However, within that time, the various entities that find themselves concerned with the issues of plant and wildlife management have often had differing interests. Consequently, the Act has served as an area of tension between competing interests since its inception and the controversial cases to which it has given rise and its numerous amendments attest to its continuing controversy. Nonetheless, it is likely these competing interests will always cohabit with some tension.

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Sugg. at 39.Id.Id.Id. at 143.115 S.Ct. They included a mandate requiring federal agencies toconsider the impact of their actions on wildlife populations, but only tothe "extent practicable."[xvii] In addition, the Senate amended itsversion to add that the secretaries of interior, agriculture, and defense"shall seek" to protect endangered species and preserve the habitats ofthese species but only "insofar as is practicable and consistent" withtheir primary purposes.[xviii] With the passage of the 1969 act,[xix] the federal program toconserve endangered species began to recognize the global nature of theproblem.[xx] This act prohibited the importation of endangered speciesinto the United States and extended the Lacey Act's ban on interstatecommerce in unlawfully taken wildlife to include reptiles, amphibians,mollusks, and crustaceans.[xxi] However, Yaffee argues that what began asan extremely prohibitive statement was modified by negotiations thatprovided an opportunity for the inclusion of non-preservationinterests.[xxii] The insertion of non-preservation interests at this point only hintedat the problems that the act would suffer throughout the years. species .. Ct. Hodel, 851 F.Supp. 24 7.Lujan v. Anastasia, The Endangered Species Act and StateSovereignty, 7 Conn. Cir. Sweet Home. ?? 555 (1992).5 4 U.S. Hodel, 7 7 F.Supp 1 82(Minn. Haw. The Supreme Court affirmed, holding that under section 7 TVA couldnot jeopardize endangered species.[li] The Court found the legislativehistory revealed a congressional decision to require agencies to affordfirst priority to the policy of saving endangered species.[lii] The Courtnoted every section of the statute showed Congress's intent "to halt andreverse the trend toward species extinction, whatever the cost."[liii]Consequently, the Court added that while the loss to the public of millionsof unrecoverable dollars might arguably outweigh the loss of the snaildarter, the language of the Act showed Congress viewed the value ofendangered species as "incalculable."[liv] Another significant case concerning the interpretation of section 7is Lujan v. ?? NEPA requires federal agencies toprepare an environmental impact statement (EIS) for proposalssignificantly affecting the human environment. 915.Lujan, 5 4 U.S. 1 7 (D.C. 133-52(1995).The Endangered Species Preservation Act, 8 Stat. at 4 .Id. 926, repealed 87 Stat.9 3.Endangered Species Conservation Act (1969), 83 Stat. The plaintiffs filedanother lawsuit arguing the dam would destroy the snail darter's habitatand thus violate the ESA.[xlviii] The trial court agreed but declined toissue an injunction.[xlix] The Court of Appeals granted the injunction[l]and the Supreme Court granted certiorari. 985 (D.C. Onceagain, it mandated federal cooperation with state governments to themaximum extent practicable because Congress was reluctant to preempt stateregulations, although it was willing to do so where those regulations werenot sufficiently protective.[xxxvi] This reluctance was due in part torecognition that the federal government lacked sufficient resources toenforce the provisions of the ESA without state cooperation. Tenn. 187, partially codified in 16 U.S.C. The Real World Context Up to the early twentieth century, American wildlife was managedalmost exclusively by state and territorial governments.[i] However, thelack of any national policy meant wildlife populations were heavilyexploited during the nineteenth century and the early wildlife groups suchas the American Fisheries Society and the National Rifle Association tendedto focus on wildlife for gaming purposes.[ii] When state agencies werefinally established to manage wildlife, they also tended to focus theirattention on game animals and fish due to their primary constituency ofhunters and fishermen.[iii] Nonetheless, Steven Yaffee observes that, after developing early inthe twentieth century, the federal role in wildlife management grewdramatically in comprehensiveness and control.[iv] The first significantpiece of legislation, the Lacey Act (19 ),[v] regulated interstatecommerce in wildlife killed in violation of state law.[vi] The Lacey Actresponded to states' inability to protect wildlife from commercialinterests that killed excessive quantities of wildlife and shipped them outof the state and thereby out of state control.[vii] The federal role soon expanded to include regulating the taking(killing) of wildlife, acquiring and managing wildlife habitats, andrequiring federal agencies to consider the impacts of their action onwildlife.[viii] The first administrative statement of the problem occurredin 1964, when a Committee on Rare and Endangered Wildlife Species wasestablished in the Interior Department's Bureau of Sport Fisheries andWildlife (BSFW).[ix] In August 1964, it published the "Redbook"--the firstofficial federal list of rare and endangered species of fish and wildlife.III. 926, repealed,87 Stat. 1986) aff'd 852 F.2d 11 6 (9th Cir. 153, 174 n. 18 Ecology L. L.J. Defenders of Wildlife, 5 4 U.S. at 46.Id. Endnotes Bibliography Journal ArticlesAnastasia, Marsha. Bus. Introduction The Endangered Species Act is an attempt by Congress to create andimplement a comprehensive program aimed at addressing the concern of theextinction of plant and wildlife species. ? Cir. 1533(a) (1988).Doremus, supra note 3 , at 299.Id.16 U.S.C. ? Debate concerning these issues should remain open and the power shouldremain with the courts and Congress to debate the issues and implement thelegislation we draft. First, some protection wasprovided for species that were proposed but not yet finally listed.[xliii]Second, the protection afforded endangered and threatened plants wasfurther strengthened, although it still did not reach the protectionafforded listed animals.[xliv]IV. at174.Frona M. . Q. ?? Prohibitive Policy: Implementing the Federal EndangeredSpecies Act. Defenders of Wildlife.[lv] In Lujan, wildlife organizationssued the Secretary for a declaratory judgment that the new regulation erredas to the geographic scope of section 7 and sought to require the Secretaryto promulgate a new regulation restoring the initial interpretation.[lvi]The District Court, however, dismissed the action for lack ofstanding.[lvii] The Court of Appeals reversed[lviii] and on remand, theDistrict Court denied the Secretary's motion for summary judgment on thegrounds the Eighth Circuit had already determined the standingquestion.[lix] The court granted the Defenders of Wildlife's meritsmotion, and ordered the Secretary to publish a revised regulation.[lx] TheEighth Circuit affirmed[lxi] and the Supreme Court grantedcertiorari.[lxii] The Defenders of Wildlife claimed they were injured because the lackof consultation with respect to funded activities abroad increased theextinction of endangered species.[lxiii] However, the Supreme Court foundthat while in other contexts the ESA is quite explicit, the Secretary'sconsultation obligation when the activity occurred on foreign soil wasstill in question.[lxiv] In addition, the Court noted that agencies supplyonly a fraction of the funding for a foreign project.[lxv] In thisparticular case, the relevant agencies had provided less than 1 percent ofthe funding for the project.[lxvi] Furthermore, the Defenders of Wildlifeproduced nothing to indicate the projects would be suspended or do lessharm to listed species if the funding was eliminated.[lxvii] Consequently,the Court held the section did not have extraterritorial jurisdiction. Q. citing Defenders of Wildlife v. Alternatives As the Tellico Dam controversy illustrates, there are differences ofopinion about the appropriate balance between land development andpreservation of endangered species.[ci] At the same time that manyinterest groups concerned with private property rights are debating theissues raised by the Court's decision in Sweet Home, the Lujan casedemonstrates that many environmental groups would prefer to extend thereach of the legislation to foreign territories.[cii] Powell argues that it is likely that the ESA and potential sanctionsfor its violation may deter private development in some case.[ciii] On theother hand, in many cases enforcement and prosecution under the ESA areoften difficult because halting all development in habitat areas may beseen as unfair and politically dangerous.[civ] One way in which Congresshas attempted to address this issue is by amending the Act to permit FWS toissue an incidental take permit in situations where owners and developershave prepared satisfactory "habitat conservation plans" (HCPs).[cv] HCPsmay only be issued incases where the taking will be incidental to anotherwise lawful activity.[cvi] Powell believes the HCPs provide asuccessful vehicle for accommodating the conflicting interests ofdevelopers and environmentalists in some cases.[cvii]VII. Further, itprovided that the secretary could grant permits for importing endangeredspecies or products made from them to prevent "undue economic loss orinjury."[xxv] Hence, permits could now be provided for zoological,educational, scientific, propagation, or commercial purposes--a significantweakening of the prohibition.[xxvi] One other significant compromise wasincluded in the bill was the requirement of compliance within one year forthose who were to receive hardship permits due to economic loss orinjury.[xxvii] To satisfy the fur industry, a petition process wasestablished that required the secretary of the interior to review thestatus of a species upon petition by an interested party.[xxviii] The shortcomings of the 1969 Act were quickly recognized. 1979).Id. L. 93-2 5,87 Stat. J.(1995) 133-52.Yaffee, Steven. Hill, 437 U.S. Haw. 1536(e) (1988).16 U.S.C. ? Legislative EnactmentsEndangered Species Preservation Act (1966), 8 Stat. Doremusargues that reluctance to disturb the traditional role of the states inregulating wildlife may also have played a role.[xxxvii] The ESA has been amended several times. 274, repealed, 87Stat. Patching the Ark: Improving Legal Protection of Biological Diversity. The Endangered Species ActI. citing 5 U.S. Powell, Defining Harm Under the Endangered Species Act: Implications of Babbitt v. 43, 47-48(Minn. 9 3.Yaffee, supra note 1, at 4 quoting Cover Letter of InteriorSecretary Stewart Udall, dated June 5, 1965.Id. ? 1 7 (D.C. (1976 ed.) prohibited the transportation ininterstate commerce of fish or wi?? 1532(2 ).Doremus, supra note 3 , at 298 citing ? at 569. at 45.Id.Id. 4321-437 (1988). at 1 75.Id. at 2431.Powell, supra note 11, at 148.Id.Id.Id. 274, repealed 87 Stat.9 3.Endangered Species Act of 1973, 16 U.S.C. 1988).Tennessee Valley Authority (TVA) v. In the first Palila case, Palila v. For example, in 1978 after the Court's decision in TVA v.Hill, Congress responded by amending the ESA to create a Cabinet-levelreview board (called the "God Committee") that could grant an exemption incases like the Tellico Dam case if the Committee found the federal projectwas of regional or national significance, there was no reasonable andprudent alternative, and the project clearly outweighed thealternatives.[xciii] The fact that the courts may not always be to blame was demonstratedby the God Committee's unanimous decision to deny an exemption for Tellicoon economic grounds.[xciv] The Committee maintained that the project wasill-conceived and uneconomic and deserved to be killed on its ownmerits.[xcv] The project ultimately went forward when Senator Baker andCongressman Duncan of Tennessee added a rider to a House appropriationsbill that explicitly overrode the decision as it applied to the Tellicoproject.[xcvi] To many, the most controversial aspect of the ESA is its power totake private property through extensive regulation of land use.[xcvii]Section 7's prohibition against jeopardizing a species or modifyingcritical habitat only applies to federal agencies.[xcviii] Section 9,however, applies to all persons. 1981).Id. at 2.Id. at 153.419 F.Supp. 884, 892 (1973).16 U.S.C. L. Nonetheless, it is likely these competing interests willalways cohabit with some tension.II. Hawaii Department of Land and Natural Resources (PalilaII),[lxxiv] The Sierra Club reopened the case by seeking to add mouflonsheep to the list of animals harming the Palila habitat. After the ESA was enacted in 1973, the Secretarydetermined Congress intended the consultation duty to haveextraterritorial application and in 1974 published a final ruleto that effect. requir[ing] special management considerations orprotections."[xl] The Secretary was also directed, in making thedetermination of critical habitat, to consider the economic impacts of suchdesignation. However, in 1986 the Secretary revised the ruleto limit the consultation obligation to actions within theUnited States or its territory. at 298.16 U.S.C. . J. Hill, 437 U.S. at 46.Id. ? 1531-44 (1988).Lacey Act, 31 Stat. at 1.17 F.3d 1463, 1464 (D.C. Anastasia, supra note 46, at97.Id. at 184.Id. The Lacey Act and the Black Bass Act of 1926, 16 U.S.C. 33 Am. at 989.Id. 9 3.Yaffee, supra note 1, at 46.Id. at 1 75.852 F.2d 11 6 (9th Cir. 1536 (1988).Id.Id.Id.Id. citing Defenders of Wildlife v. However, the preservation of our environment isalso significant for the sustained health of our world and our environment. The Leading Cases Tennessee Valley Authority (TVA) v. 1531-1544 (1988).Holly Doremus, Patching the Ark: Improving Legal Protection ofBiological Diversity, 18 Ecology L. at 15 .Id.Id.----------------------- 1 at 2412.Id. at 34.16 U.S.C. at 44-46.Id. Hill[xlv] the Snail Darter Case,arose from a conflict between a federal agency's decision to build a damand a citizen coalition seeking to save a fish.[xlvi] The coalitionobtained a two-year injunction under the National Environmental Policy Act(NEPA).[xlvii] The same year the injunction was dissolved, 1973, aUniversity of Tennessee ichthyologist discovered a small endangered fish,the "snail darter," living in the project area. 714 (1995).Id. 1531-1544 (1988); see also TVA v. citing Defenders of Wildlife v. Hawaii Department of Land &Natural Resources (Palila I),[lxviii] three environmental groups and thePalila bird filed for a declaratory judgment and an injunction against theState of Hawaii and its Department of Land and Natural Resources contendingthat the defendants were "taking" the Palila bird in violation of Section 9of the Endangered Species Act.[lxix] They contended that feral sheep andgoats destroyed the bird's critical habitat in violation of the Act.[lxx]The District Court agreed.[lxxi] On appeal, the Ninth Circuit Court ofAppeals affirmed the district court's decision[lxxii] finding it consistentwith the Act's legislative history.[lxxiii] In Palila v. Int'l. . J. "TheEndangered Species Act is a carefully considered piece oflegislation that forbids all persons to hunt or harm endangeredanimals, but places upon the public at large, rather than uponfortuitously accountable individual landowners, the cost ofpreserving the habitat of endangered species." Id. at 571.Id.471 F.Supp. Hodel, 659 F.Supp. Justice Scalia, joined by Chief Justice Rehnquistand Justice Thomas, dissented. 1981).Palila v. at 562.Id. . 1994).Powell, supra note 11, at, 143 citing Ike C. at 2414.Id. ? 153 (1978).-----------------------Steven Yaffee, Prohibitive Policy: Implementing the FederalEndangered Species Act 32 (MIT Press, 1982).Id.Id.Id.31 Stat. Lujan. at 184.Id. Sweet Home Chapter of Communities for a Great Oregon, 115 S. If this includes intentional disruptionof habitat, as occurs during land development, the statute's prohibitionsmay have a profound effect.[xcix] As public debate over the issues inSweet Home suggests, one of the significant policy questions under Section9 of the ESA is whether private property development that destroys criticalhabitat of an endangered species should be prevented by governmentregulation.[c] The question comes down to the extent to which privatelandowners should bear the costs of protecting endangered species.VI. The Lacey Act and the Black Bass Act of 1926, 16 U.S.C.'ð'ð 851 et seq. (1991) 265, 297.Id.Id. Haw. at 136, citing 16 U.S.C. at 2418. L. In suchcases, alternatives are limited because very often neither group is willingto give up any part of its position. However, withinthat time, the various entities that find themselves concerned with theissues of plant and wildlife management have often had differing interests. 7 Conn. (1991) 265-333.Powell, Frona. ?? Furindustry representatives argued that the problem was international andunilateral action by the United States was inappropriate and would resultin inequitable damage to American furriers.[xxiii] After much negotiation,the Interior Department proposed an amendment that would limit specieseligible for endangered status to those threatened with worldwideextinction.[xxiv] In determining endangered status, the amendment wouldrequire the secretary to consult with interested persons. at 497-98.649 F.Supp. Hawaii Department of Land and Natural Resources (Palila II), 649 F.Supp. Powell, supranote 11, at 134.TVA v. 1977)TVA v. at 149. Defining"Harm" to Wildlife, Nat'l L.J., June 2 , 1994, at C1.Id. (MIT Press, 1982). at 46.Id.16 U.S.C. The Act currently in force is aculmination of almost a century of wildlife management. Hill, 437 U.S. When Congress has entrusted the Secretary with broaddiscretion, we are especially reluctant to substitute our views of wisepolicy for his."[lxxxix]V. 1976).549 F.2d 1 64, 1 75 (6th Cir. 1532(6) (1988).Id. The History of the Endangered Species Act The Endangered Species Act was adopted in 1973.[x] It followed twoother acts passed in 1966 and 1969 that authorized the federal governmentto purchase land for the conservation of species and directed federalagencies to preserve the habitats of such species.[xi] The principalobjective of the 1966 Act[xii] was to authorize the Secretary of theInterior to create a comprehensive program to conserve, protect, restore,and where necessary to establish and propagate threatened species.[xiii]It differed from earlier legislation because it outlined a comprehensiveprogram that incorporated three of the four themes of federal wildlife law: acquiring habitat, regulating taking, and mandating inter-agencycooperation, rather than providing help on a species-by-species basis.[xiv] The 1966 Act was proposed by the BSFW's scientists and wildlifemanagers.[xv] They had developed a strong commitment to the endangeredspecies issue and wanted a bill that would give the BSFW authority toundertake a comprehensive program to conserve endangered animals.[xvi] Thebills were largely perceived as "refuge bills" with little or no impact onany other interest. Critical habitat designation has become one of the mostcontroversial features of the ESA; it is also the facet of the Act thatcomes closest to direct land use regulation.[xli] In 1982, Congress addeda provision allowing the government to give private parties permission totake endangered species under certain conditions.[xlii] Again, Congressmade two major changes in the ESA in 1988. The ESA defined "endangered species:" as aspecies "in danger of extinction throughout all or a significant portion ofits range."[xxxiii] A "threatened species" was one likely to becomeendangered "within the foreseeable future."[xxxiv] The 1973 ESA also required that federal agencies ensure that theiractions would not "jeopardize the continued existence of endangered andthreatened species."[xxxv] However, the Act provided no standards for thedesignation of critical habitat and did not even define the term. The preservation of private propertyrights is a significant issue in a country founded on the basis of freedomas is the United States. Sweet Home, 33 Am. at 571.Id. 1993).Id. 1989).Id. at 149.Id. L. ?? . The Interior Secretary disregarded this pledge,impermissibly restricting the scope of section 7. 1993)Sweet Home Chapter of Communities for a Great Oregon v. The Endangered Species Act and State Sovereignty: Defenders of Wildlife v. 667e and 7 1.Id.. 1987).Id. The first major amendmentsto the ESA were enacted in 1978.[xxxviii] Congress introduced a procedurewhereby federal agencies could obtain an exemption from the duty not tojeopardize endangered species or their critical habitat.[xxxix] Theamendments also introduced a definition of critical habitat. at 41.Endangered Species Conservation Act, 83 Stat. at 999.639 F.2d 495, 498 (9th Cir. 1986).Id. 753, 763 (E.D. The Impact of the Courts Frona Powell notes that there are many critics of the ESA.[xc]Specifically some members of Congress believe the ESA as well and otherenvironmental laws have wrongly interfered with private propertyrights.[xci] They use as examples cases such as TVA v. Conclusion Unfortunately, there remain cases where a project within anendangered habitat and species preservation cannot co-exist. 1532(5)(A) (1988).Doremus, supra note 3 , at 3 1.Id.Id.Doremus, supra note 3 , at 3 2.437 U.S. Bus. Congressresponded by enacting the Endangered Species Act of 1973.[xxix] The ESAwas the product of strong public interest in environmentalism combined withan "increased belief in federal regulation as appropriate publicpolicy."[xxx] Less cautious than the earlier acts, the 1973 Act allowedany species of plant or animal to be accorded protected status.[xxxi]Second, it prohibited the taking of endangered species of animals withinthe United States, on both private and public lands.[xxxii] A thirdelement was the introduction of two categories of protected species:endangered and threatened. Babbitt,1 F.3d 1 (D.C. at 111 .1 F.3d 1 (D.C. at 187.5 4 U.S. ? Hill, 437 U.S. (1976 ed.) prohibited the transportation in interstate commerce offish or wildlife taken in violation of national, state, or foreign law.Tennessee Valley Authority (TVA) v. Haw. In that case, thedefendants stressed that the Secretary of the Interior had redefined theterm "harm" in 1981.[lxxv] However, the district court held that underboth the original definition and the definition as amended in 1981, "harm"included significant habitat destruction that injured protectedwildlife.[lxxvi] The Ninth Circuit Court of Appeals again affirmed thedistrict court in Palila II.[lxxvii] It held the district court'sinterpretation of harm was enough to sustain an order for the removal ofthe sheep.[lxxviii] The case of Sweet Home Chapter of Communities for a Great Oregon v.Babbitt[lxxix] also addressed the definition of "harm" under the Act. 187, partially codified in 16 U.S.C. facing extinction,' the section 7 consultation requirementmust be strictly applied to all United States agency action,whether in the United States, on the high seas, or in a foreignnation. at 559.Id. 153 (1978).Marsha L. Justice Scalia objected to theregulation on public policy grounds, among other things. at 147 citing 16 U.S.C. Consequently, the Act has served as an area of tension between competinginterests since its inception and the controversial cases to which it hasgiven rise and its numerous amendments attest to its continuingcontroversy. citing 911 F.2d 117 (199 ).Id. 1979) aff'd 639 F.2d 495 (9th Cir. 7, Pub. In her analysis of Lujan, Marsha Anastasia clearly argues infavor of an expansive reading of the ESA:"In order to fulfill the United States pledge `as a sovereignstate in the international community to conserve . at 987.Id. 1536 (1988).Id.Id.Id. 667e, 7 1. 1 35(1988).Id.Id. Hill, 437 U.S. at 43.Id. Thisdefinition was quite narrow, encompassing only areas which contain physicalor biological features both "essential to the conservation of the speciesand . No. Court ofAppeals issued an opinion holding the Secretary's definition was areasonable interpretation of the Act.[lxxxii] However, in March 1994, the court reconsidered the case and ruledthat the FWS regulation prohibiting habitat modification on private land ifit might injure ESA-listed wildlife indirectly was "neither clearlyauthorized by Congress nor a `reasonable interpretation' of thestatute."[lxxxiii] The essence of that opinion, according to one writer,is that "no matter how high the priority nor how great the cost, Congressdid not intend to foist preservation on individual property owners merelybecause they own habitat for endangered species."[lxxxiv] The court saidCongress did not intend that private landowners would have to assist in theprotection of endangered species and that Congress intended to address theproblem of habitat modification by providing funds for the acquisition ofcritical habitat.[lxxxv] Following the decision, the Supreme Court granted certiorari.[lxxxvi] In its opinion reversing the court of appeals and upholding theregulation, the Supreme Court said the text of the Act provided threereasons for concluding the Secretary's interpretation wasreasonable.[lxxxvii] First, it relied on the plain meaning of the wordharm, concluding that the ordinary understanding of the word supports theFWS interpretation of its meaning; second, the broad purpose of the ESAsupported the Secretary's decision to extend production against activitiesthat "that cause the precise harms Congress enacted the statue to avoid,"and third, the fact that Congress in 1982 authorized the Secretary to issuepermits for taking that section 9(a)(1)(B) would otherwise prohibit,"strongly suggests the Congress understood section 9(a)(1)(B) to prohibitindirect as well as deliberate takings."[lxxxviii] According to the Court,"The proper interpretation of a term such as "harm" involved a complexpolicy choice. 1988).Id. 'ð'ð 667e and 7 1.Id.. (Fall 1991) 87- 122.Doremus, Holly. Inthat case, citizen groups, lumber companies, and lumber trade associationschallenged whether the 1981 FWS definition of "harm" under the ESA was apermissible interpretation of the language of the Act.[lxxx] They arguedthe Secretary's definition of "harm" violated the statute because the ESAexcluded habitat modification from the types of forbidden actions thatqualify as "takings" of species.[lxxxi] In July 1993, the D.C. 985 (D.C. 555 (1992).Palila v. CasesBabbitt v. 87, 94 (Fall 1991); see alsoPowell, supra note 11, at 134.42 U.S.C ?? Hill to demonstratethe way they believe environmental laws attempt to take priority over allother government objectives.[xcii] Indeed, the courts do have asignificant impact on the implementation and drafting of environmental lawssuch as the ESA. Cir. Hawaii Department of Land & Natural Resouces (Palila I), 471F.Supp. Int'l. 851 etseq. 2 (1978).Id.Id.Id. at 187.Id. Implications of Babbitt v. His argumentthat the consultation requirement would interfere with thesovereignty of foreign nations loses strength when weighedagainst the severe effect of species depletion on the world.Anastasia, supra note 46, at 122.Powell, supra note 11, at 149.Id.Id.

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