ENDANGERED SPECIES ACT Introductory Questions Why should we protect species Why types of interests are likely to e against species protections Are some species more important than others Marine Mammal Protection Act Migratory Bird Treaty Act Lacey Act o Underlying violation of state foreign or federal law o Transport across state lines Gibson guitar Raid o Convention on International Trade in Endangered Species CITES o Endangered Species Act ESA Passed in 1973 Little opposition Lacked the utilitarian tone and public health implication of CWA and CAA Had substance not just procedural like NEPA Protect all species against activities by anyone anywhere Who is in Charge Secretary of Interior Fish and Wildlife Service Secretary of Commerce National Marine Fisheries Service Section 4 Listing Process Section 7 Consultation Process federal agencies o TVA vs Hill Section 9 Take Provision everyone Section 10 Habitat Conservation Plans Civil and Criminal Penalties fines and jail times Endangered means any species which is in danger of extinction throughout all or significant portion of its range Threatened means any species which is likely become an endangered species within the foreseeable future Listing Factors Based solely on best scientific and commercial data available Costs not to be considered A the present or threatened destruction modification or curtailment of its habitat or range Statutes ESA How Section 4 B overutilization for commercial recreational scientific or educational purposes C disease or predation D the inadequacy of existing regulatory mechanisms or E other natural or manmade factors affecting its continued existence Section 7 Section 9 Take Each federal agency shall in consultation with and with the assistance of the Secretary ensure than any action authorized funded or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat TVA v Hill o GET NOTESSSS Steps in Section 7 Compliance o Are there endangered threatened species present o If yes Biological Assessment by Action Agency To determine whether there will be an adverse effect on species Like an EA under NEPA o Informal or Formal Consultation with FWS or NMFS Most or informal o If Formal Biological Opinion by FWS or NMFS Jeopardy reasonable and prudent alternatives and incidental take statement No jeopardy done Prohibits any person from taking selling importing or exporting any protected species Take harass harm pursue hunt shoot wound kill trap capture or collect or attempt to engage in any such conduct Harm FWS further define harm o Significant habitat modification that kills or injured wildlife by significantly impairing essential behavior patterns including breeding spawning rearing migrating feeder or sheltering o Did congress intend for all these incidental issues Babbit v Sweethome o Logging companies and timber interests o Challenged the FWS s definition o Upheld the definition o Why Ordinary meaning Additional words in definition Harm is broader than direction application of force Broad purpose of ESA TVA v Hill Section 10 permits process and HCP s would be unnecessary Allows for the incidental harming Reasoning behind section o Concurring Opinion O Conner Limited to habitat modification resulting in ACTUAL death or injury Impairment of breeding injured living creatures Bounded by foreseeability Fertilizers form a field due to a tornado no vs draining a pond cutting down trees yes o Dissent o BIG IDEA Take should be defined as it was at common law Upheld FWS definition of harm significant habitat modification that kills or injures wildlife by signigicantly impariting essential behavioral patterns including breeding spawning rearing migrating feeder SECTION 9 LIABILITY FOR HOTEL p 1003 1004 Hotel on private land outside of Yellowstone Polar Bears and ESA Does operation of power plant and its emission of greenhouse gases cause a Take under Section 9 Threatened Special 4 D rules allow for threatened specieis not endangered o Does not apply outside Alaska Differences between the ESA and NEPA ESA is to everyone NEPA is a process ESA is binding NEPA applies to all government actions NEPA only requires your to consider and action agency makes all decisions NEPA is a cool analysis ESA is procedural AND substantive ESA wildlife agencies determine jeopardy Acton Agency makes decision on action ESA applies to federal and private conduct