II. Operational Legal Rights for Listed Species

The title of this essay alludes to another: “Should Trees Have Standing? Toward Legal Rights for Natural Objects” by the aforementioned Christopher D. Stone.Footnote ¹⁹ “Trees” was written hurriedly and rushed into publication in the Southern California Law Review in 1972, a year prior to passage of the ESA, as Stone hoped to influence a case, Sierra Club v. Morton, then pending before the United States Supreme Court.Footnote ²⁰ The Sierra Club was suing the secretary of the interior, Rogers C. B. Morton, under the Administrative Procedure Act, to compel him to enjoin Walt Disney Enterprises from developing a ski resort in a place much loved by hikers, the Mineral King Valley in the Sierra Nevada Mountains of California. The defendant challenged the Sierra Club's “standing,” its right to file suit—successfully, as it turned out—because the Sierra Club did not assert injury to itself, as a legally constituted “person” in its own right, nor to its members severally, by the Disney development project. Rather, the Sierra Club alleged that “the project would adversely change the area's aesthetics and ecology.”Footnote ²¹ Stone, in effect, offered a legal theory to support the Sierra Club's case. Assuming that the natural object that the Sierra Club sought to protect would in fact be injured by the Disney development project, Stone suggested that the Mineral King Valley itself, therefore, ought to have standing:

In “Trees,” Stone identifies three criteria that, when met, “operationally” confer legal rights on some entity, irrespective of whether the discourse of rights is used: (1) legal action may be commenced on the entity's behalf; (2) in granting legal relief, the court must take injury to the entity into account, not only to some third party; (3) relief must run to the benefit of the entity, not only to some third party.Footnote ²³ Here we argue that the Endangered Species Act of 1973 confers operational legal rights (in Stone's sense) on listed species.

Our interpretation of the ESA is both unique and controversial. To our knowledge, no one else has made such an argument. And if we are right, the ESA represents the incursion of ecocentrism into public policy. Environmental philosophy has been preponderantly preoccupied with a critique of “anthropocentrism”—the view that human beings exclusively have a claim to intrinsic value and rights—accompanied by proposals for various kinds of nonanthropocentrism, such as animal liberation and animal rights (zoocentrism) and Deep Ecology's “biocentric egalitarianism—in principle.” Ecocentrism is the view that various transorganismic entities, such as whole species, biotic communities, and/or ecosystems, have intrinsic value—and thus some modicum of “moral considerability” (if not rights).

Of course, U.S. law, as Stone points out in “Trees,” creates all kinds of fictive “persons,” but all such “persons” are various leviathans (in Thomas Hobbes's sense)—collective bodies composed of human beings (such as nongovernmental organizations, corporations, or municipal, county, and state governments) or human artifacts (such as ships at sea) that, for convenience, the law treats as persons. Various laws regulating the treatment of animals in research laboratories, zoos, rodeos, farms, and so on, are arguably nonanthropocentric and reflect a growing popular concern for animal welfare that nonanthropocentric philosophers, such as Peter Singer, have fomented. The Spanish parliament made headlines in 2008 by passing a resolution to extend human rights to all the other great apes—bonobos, chimpanzees, gorillas, orangutans, and gibbons.Footnote ²⁴ (Peter Singer, incidentally, had a hand in that.) However, compared with what we claim that the ESA does, Spain's human-rights-for-all-great-apes legislation is only a very modest gesture toward nonanthropocentric public policy. The thought that a set (those that are threatened and endangered and listed as such) of whole species (as opposed to concrete individuals) of a wide variety of animals and plants might have legal rights conferred on them—however merely “operational” those rights may be—by a U.S. federal law going back to 1973 is an astounding thought to think. But that is what we argue here. And, as we demonstrate by a review of the relevant case law, several contradictory rulings have followed in the wake of the passage of the ESA because of jurisprudential confusion about the issue of standing occasioned by the law. Should endangered species have standing? That is the question that the law itself provokes.

We begin our argument by comparing Stone's three criteria for operational legal rights to the provisions of the ESA.

As to Stone's first criterion for operational legal rights—legal action may be commenced on the rights-holder's behalf—ESA provides two crucial things. First, section 11(c) of the act provides for “the several district courts of the United States” to have “jurisdiction over any actions arising under this chapter.”Footnote ²⁵ Second, section 11(g)(1), the “Citizen Suits” section of the law, provides that “any person may commence a civil suit” against any other private person, the United States, or any agency thereof who is alleged to be in violation of the act or any regulation issued under its authority. Likewise, such a suit may be brought to compel the secretary of the interior—a political appointee, who may be motivated more by partisan ideology than by the common good—to apply the provisions of the act; or a suit may be brought against the secretary for alleged failure to apply the provisions of the act.Footnote ²⁶

Now, on to Stone's second criterion for having legal rights, “operationally” if not expressly—in granting legal relief, the court must take injury to the rights-holder into account, not only injury to some third party. The circumstances of injury go straight to the issue of standing.

Article III of the Constitution establishes the Supreme Court of the United States and also empowers Congress to establish various inferior courts (such as the district courts) to adjudicate “cases” and “controversies.” Article III nowhere mentions “standing,” but in the virtually Talmudic tradition of U.S. case law and precedent, the concept of standing has devolved from the Article III circumscription of the jurisdiction of federal courts to “cases” and “controversies.” Writing for the majority of the Eighth Circuit Court of Appeals in Defenders of Wildlife v. Hodel (a case we discuss more fully in Section VI below), Judge Roger L. Wollman succinctly explains one basic rationale behind the doctrine of standing: “One purpose behind the ‘cases or controversies’ requirement is to ensure that the courts will not intrude into areas committed to other branches of government.”Footnote ²⁷ In Friends of the Earth v. Laidlaw Environmental Services, Justice Ruth Bader Ginsburg, writing for the majority in 2000, clearly set out the “irreducible constitutional minimum of standing” as it had by then crystallized: “To satisfy Article III standing requirements, a [would-be] plaintiff must show that (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”Footnote ²⁸

The ESA, however, does not require the person bringing suit on behalf of a listed species in a U.S. District Court to allege that he or she has been personally injured. Rather, it expressly allows “any person” to bring suit on behalf of a listed species. Further, as section 4(a)(1) of the ESA specifies injury (in fact), such injury is to a threatened or endangered species, not to some human person. The “destruction, modification, or curtailment of its habitat or range,” as noted, or “overutilization for commercial, recreational, scientific, or educational purposes” is warrant for granting it legal relief.Footnote ²⁹ In providing that “any person” may bring suit on behalf of a listed species, then, ESA in effect confers de facto standing on the listed species. The citizen who brings the suit is, as it were, representing the aggrieved species as its attorney or guardian ad litem. This provision was noted with approval by Chief Justice Warren Burger, writing for the majority, in the ESA's first major test case, Tennessee Valley Authority v. Hill (1978): “Citizen involvement was encouraged by the Act, with provisions allowing interested persons to petition the Secretary to list a species as endangered or threatened … and bring civil suits in United States district courts to force compliance with any provision of the Act”—interested persons, not injured persons.Footnote ³⁰

As to Stone's third criterion—relief must run to the benefit of the rights-holder, not only to some third party—section 4(d) directs the secretary of the interior to “issue such regulations as he deems necessary and advisable to provide for the conservation of such [listed endangered and threatened] species.”Footnote ³¹ Especially in the mandate in section 4(a)(1)(A) to protect a listed species from the “curtailment of its habitat or range,” relief of injury to listed endangered species clearly runs primarily to their benefit.Footnote ³²

When these criteria are met, an entity acquires “a legally recognized worth and dignity in its own right, and not merely to serve as means to benefit ‘us’ (whoever the contemporary group of rights holders may be),” according to Stone.Footnote ³³ In other words, legal rights recognize and are based on the intrinsic value of the entities to which such rights are accorded. In short, then, the ESA operationally (in Stone's sense) confers legal rights on listed threatened and endangered species and, thus, implicitly recognizes their intrinsic value and awards them de facto standing. Let us hasten to note that the act nowhere mentions the intrinsic value of listed species. As noted, section 2(a)(3) of the act expressly declares that threatened and endangered species “are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”Footnote ³⁴ Moreover, as we have also noted, the last phrase—“to the Nation and its people”—suggests that these values are to be understood as anthropocentric.Footnote ³⁵

The radical implication of the citizen-suit provision of the ESA—conferring de facto standing on the injured species—has confounded the adjudication of suits filed under its provisions. Who has standing to sue? Jurisprudentially, only a human “person” (who may be one or another Hobbesian leviathan) who has been or would be injured in an actual, concrete, and particularized way by the action of another such “person” can have standing. But Congress has authorized any person whomsoever—regardless of injury to him- or herself—to sue to redress or forestall an actual, concrete, and particularized injury to a listed species. If Congress may, in effect, waive Article III standing requirements for the human litigant who files suit on behalf of a listed species, then it is the listed species that has standing—whether expressly acknowledged or not—and the person filing suit on its behalf becomes, in effect, its attorney or guardian ad litem. The U.S. District Court for the Northern District of California pointed out that the de facto standing conferred on listed species by the ESA's citizen-suit provision had sometimes been conflated with de jure standing: “Some courts have permitted suits to go forward under the citizen suit provisions of the ESA with fish and wildlife species named as the plaintiffs….”Footnote ³⁶ (In the next section, we indicate the names of the animal plaintiffs in such suits and cite the cases that were adjudicated.)

III. Philosophical Background

The U.S. Endangered Species Act of 1973 was the culmination not only of a long tradition of wildlife preservation, but of an emergent “environmental movement” that had gained force over the previous decade (the 1960s) in response to a perceived “environmental crisis.” Indeed, one might say it was the crowning achievement of that movement. Several works were instrumental in creating the impression of an environmental crisis and galvanizing an environmental movement: most notably, The Quiet Crisis (1963), by Stewart Udall, secretary of the interior in the Kennedy administration; and Silent Spring (1962), by Rachel Carson, an eminent marine biologist and gifted author.Footnote ³⁷ A third book, published to little fanfare in 1949, subsequently emerged as the bible—in the words of one historianFootnote ³⁸—of the nascent environmental movement: A Sand County Almanac by Aldo Leopold, a forester turned game manager turned wildlife ecologist. The capstone essay in Sand County is titled “The Land Ethic.” In it, Leopold suggests that species should have rights based on their intrinsic value. As to species rights, he avers:

Leopold goes on to insist that “predators [too] are members of the biotic community and that [therefore] no special interest has the right to exterminate them for the sake of a benefit, real or fancied, to itself.”Footnote ⁴⁰ And as to intrinsic value, Leopold writes: “It is inconceivable to me that an ethical relation to land can exist without love, respect, and admiration for land, and a high regard for its value. By value I of course mean something far broader than mere economic value; I mean value in the philosophical sense.”Footnote ⁴¹ Leopold was not a professional philosopher and thus was apparently not aware that there is no distinct “philosophical sense” of value. Contemporary environmental philosophy recognizes two main ways that people value natural objects: as a means to human ends, whatever those ends may be—including “esthetic, ecological, educational, historical, recreational, and scientific” human ends—and as ends in themselves. In the former case, natural objects are valued instrumentally; in the latter, they are valued intrinsically. For purposes of comparison and trading one thing off against another, economists quantify things of instrumental value in a monetary metric. But, as Immanuel Kant long ago observed, it is not appropriate to price things of intrinsic value.Footnote ⁴² Thus, by contrasting “value in the philosophical sense,” with “economic value,” Leopold could only mean by the former what contemporary environmental philosophers call “intrinsic value.”Footnote ⁴³

Nor was Leopold the first famous environmentalist to suggest that having rights was not an exclusively human prerogative. In A Thousand Mile Walk to the Gulf, published in 1916, John Muir wrote, “How narrow we selfish, conceited creatures are in our sympathies! How blind to the rights of all the rest of creation!”Footnote ⁴⁴ Unlike Leopold, however, Muir provided no theoretical support for expanding the realm of rights-holders. Nevertheless, just as the context makes clear that Leopold is thinking of rights for nonhuman species—not for individual nonhuman beings or for less circumscribed entities, such as mountains or ecosystems—so the context suggests that the entities Muir regarded as candidates for rights are also species. For his exclamation comes in the midst of a disparaging discussion of the low regard that many people, whom Muir met in his trek through southern Georgia and northern Florida, had for the alligator.

Thus, before Stone had theorized the underpinnings of operational legal rights for natural objects, the idea of rights for threatened species, based on their intrinsic value, had become familiar in the environmental movement, because the matter had been broached by Muir and elaborated by Leopold. The critical migration of the idea of rights for natural objects—more specifically, rights for threatened species, as Leopold more narrowly envisioned such rights—from mere legal theory to (cryptic) federal law may have been facilitated by the Supreme Court. While the Court ultimately ruled, in Sierra Club v. Morton, that the Sierra Club lacked standing to sue to save the Mineral King Valley from ski-resort development by Walt Disney Enterprises, Justice William O. Douglas warmly endorsed Stone's theory in the very first paragraph of his dissenting opinion:

Perhaps not inconsequentially, Douglas cited, in his last paragraph, Aldo Leopold's essay “The Land Ethic.” Also subconsciously influencing Douglas's thinking might well have been his knowledge that Muir—the first to float the concept of rights for nonhuman species—was the founder of the Sierra Club (the plaintiff in the Mineral King case). That a Supreme Court justice, albeit in the minority, took Stone's “operational”-legal-rights-for-natural-objects theory seriously may have legitimated it among those who make and dispense federal laws. Our review of the legislative history of the ESA discovered no references to Stone's essay or to Douglas's dissent in the Sierra Club case.Footnote ⁴⁶ The absence of any such references in that history is not evidence, however, that an issue which rose to the highest court in the land would not be noticed by Washington lawmakers, because Washington insiders—then, we presume, as well as now—are cognizant of Supreme Court cases, especially those in which a dissenting opinion is registered.

In any event, coincidentally or otherwise, the next year Congress enacted the ESA. And three years after that, Hiram Hill sued the Tennessee Valley Authority (TVA) on behalf of a species of fish.Footnote ⁴⁷ Opponents of the Tellico Dam that TVA was constructing on the Little Tennessee River had been litigating to stop the project from being completed under the provisions of the 1969 National Environmental Policy Act (NEPA), without much success.Footnote ⁴⁸ Then David Etnier, a University of Tennessee biologist, discovered an endemic species of fish in the river—the small, minnow-like snail darter—whose critical breeding habitat would be inundated if the dam were completed.Footnote ⁴⁹ Having the good fortune to find an endemic species that the dam would threaten with extinction, the dam's opponents used the ESA strategically to realize an end—to stop the Tellico project—that they had not been able to achieve under the provisions of the NEPA.Footnote ⁵⁰ First they petitioned the secretary of the interior to list the snail darter as an endangered species in January of 1975; and their petition was granted in October of the same year.Footnote ⁵¹ Then Hill filed suit in 1976, under the ESA, to enjoin TVA from completing the project.Footnote ⁵² He lost and, in 1977, appealed his case to the Sixth Circuit Court of Appeals, which reversed the ruling of the lower court and granted the injunction that Hill sought.Footnote ⁵³ TVA appealed the Sixth Circuit Court's reversal to the Supreme Court, which affirmed the judgment of the appellate court and thus stopped construction on the dam.Footnote ⁵⁴

But not for long. Congress, outraged that the Supreme Court interpreted the ESA so strictly and stringently, amended it in 1978 to create a cabinet-level Endangered Species Committee (irreverently called the God Squad) that could grant exceptions to compliance with the act.Footnote ⁵⁵ The God Squad denied TVA's petition for an exemption, based on the very economic considerations it was formed to weigh against the “incalculable” (intrinsic?) value of a listed species.Footnote ⁵⁶ The projected economic benefits of the Tellico project did not appear to exceed its cost. Finally, members of the congressional delegation of Tennessee, led by Senator Howard Baker, crafted a nongermane rider to the Energy and Water Development Appropriation Act of 1980 that solely exempted the Tellico Dam project from the provisions of ESA; the act was signed into law by President Carter, and the project was thereafter finally completed.Footnote ⁵⁷ As to the snail darter's fate, other populations of the species were found in other streams unaffected by the dam—enough that it was downlisted from endangered to threatened (where it remains today)—and so it was not driven to extinction.Footnote ⁵⁸

Hill was a student of Etnier. He was also a student of a University of Tennessee law professor, Zygmunt J. B. Plater—the legal strategist and lead attorney throughout the Hill v. TVA/TVA v. Hill case history—who eventually argued the case, successfully, on appeal before the U.S. Supreme Court. The choice to file the case in a district court in Hill's name appears to have been a symbolic in-your-face assertion of the citizen-suit provision of the ESA, for certainly while Hill had been the link between Etnier and Plater and thus at the center of the case, he would not “in fact” be injured “individually, concretely, particularly, and materially” by the willful extinction of the snail darter.Footnote ⁵⁹ Because TVA did not challenge Hill's standing, it must have taken the citizen-suit provision of the ESA to mean exactly what it says, that any person may file suit to enforce the provisions of the act. Thus, Hill was, in effect, the snail darter's guardian ad litem and Plater was, in effect, its attorney; and the snail darter was, in effect, the entity that had standing.

To repeat: the ESA does not provide intrinsic value, legal rights, and standing for listed species; rather, it provides implicit intrinsic value; operational legal rights, and de facto standing for listed species. It was, however, a short step from de facto standing to presumed de jure standing for listed species. In 1979, only a year after the TVA v. Hill decision, the state of Hawaii was sued by a bird (both represented and joined, as fellow plaintiffs, by the Sierra Club, the National Audubon Society, the Hawaii Audubon Society, and Alan C. Ziegler) whose habitat was being destroyed by feral sheep and goats that the state agency was maintaining for purposes of sport hunting.Footnote ⁶⁰ In Palila v. Hawaii Department of Land and Natural Resources (“Palila I”), District Judge Samuel P. King, who ruled in favor of the plaintiffs, expressly affirmed the standing of the NGOs and Ziegler to sue, but he was silent on the standing of the bird.Footnote ⁶¹ In 1981, the Ninth Circuit Court of Appeals affirmed the ruling of the district court (“Palila II”).Footnote ⁶² In 1986, the Sierra Club reopened the case to amend it by adding the mouflon sheep as a destructive animal to be removed along with the feral sheep and goats (“Palila III”).Footnote ⁶³ In each case, the bird's name remained on the caption as the case was heard. In appealing Palila III, the Hawaii Department of Land and Natural Resources did not challenge the bird's standing. Upon review in 1988, however, the Ninth Circuit Court of Appeals appeared expressly and unequivocally—albeit gratuitously because the issue was not before it—to grant standing to the injured species, known as palila:

Thus, “Palila IV” appears to regard the bird as the sole plaintiff, while the Sierra Club, the Audubon Society, and the other environmental parties joining it, join it not as fellow plaintiffs—albeit that is how they are formally designated—but as donors of attorneys to represent the bird. After that decision, a number of other suits were brought in the name of injured species as plaintiffs: the Northern Spotted Owl (joined by twenty-two environmental NGOs); the Mt. Graham Red Squirrel (joined by ten environmental NGOs and an individual human being); the Hawaiian Crow (joined by the National and Hawaii Audubon Societies); the Marbled Murrelet (joined by the Environmental Protection Information Center); the Florida Key Deer (joined by the National and Florida Wildlife Federations, Defenders of Wildlife, and an individual human being); the Hawksbill Sea Turtle (joined by the Green Sea Turtle, the Virgin Island Tree Boa, and more than fifty individual human beings); the Loggerhead Turtle (joined by the Green Turtle and two individual human beings); the Coho Salmon (joined by three environmental NGOs); and, finally and most expansively, the Cetacean Community (suing all by itself).Footnote ⁶⁵

IV. Legislative Attacks on the Endangered Species Act

The ESA has not been popular among political conservatives for whom any expansion of the class of rights-holders (except to human embryos) is anathema and for whom the property rights of traditional rights-holders are paramount.Footnote ⁶⁶ In addition to preserving natural objects that have intrinsic value, the anthropocentric benefits of preserving threatened and endangered species accrue to the public at large, “to the Nation and its people,” but the opportunity costs often accrue to individual owners of critical habitat—whose putative plans to harvest or develop their properties may be thwarted by the ESA. Thus, the ESA has grated on the concerns of conservative property-rights zealots. In its 1995 Babbitt v. Sweet Home decision, the Supreme Court upheld the interpretation of “take” and “harm” in the ESA to include critical-habitat destruction, an interpretation that had been in place as an Interior Department regulation since 1975.Footnote ⁶⁷ Thus, if a private property owner engages in logging on the critical habitat of the northern spotted owl or the marbled murrelet, that would constitute a prohibited “take” under the provisions of the act.

For that reason, the ESA is perennially a target of conservative activists who argue that enforcement of the ESA prohibitions on “taking” a listed species, through destruction of its habitat, is equivalent to a different kind of “taking”—the taking of private property, as in eminent domain.Footnote ⁶⁸ Therefore, just as in an eminent-domain taking, they argue, the Fifth Amendment of the U.S. Constitution requires the government to render “just compensation” to property owners for effectively appropriating their land.Footnote ⁶⁹ Of course, among the conservative amalgam of shibboleths are also “smaller government” and tax and spending cuts; thus, proposals to compensate aggrieved property owners are not accompanied by proposals to fund compensation through additional taxation.Footnote ⁷⁰ The ultimate effect would be to undermine the ability of responsible agencies to enforce the ESA against private property owners. Unlike the eminent-domain taking of private property for a public use such as a highway, however, enforcement of the ESA does not constitute any transfer of title. The sale price of land “taken” may diminish if it is home to a listed species, but the property is not physically seized. Therefore, it is not the sort of taking that James Madison envisioned when he wrote the Fifth Amendment.

In his contribution to this volume, “Land Use Regulation, Takings, and Public Goods,” N. Scott Arnold clearly indicates why the courts have resisted landowner efforts to exact compensation for the otherwise profitable use of their land being “taken” by the enforcement of the ESA (though he does not approve of the courts' resistance). As Arnold notes, the courts have long recognized regulatory takings as well as title-transfer takings.Footnote ⁷¹ Nevertheless, according to Arnold, the courts have relied on the rightful exercise of the government's police power to “regulate private property without compensation for the ‘health, safety, or morals’ or (more recently) ‘the general welfare’ of society.”Footnote ⁷²

As we have noted, section 2 of the ESA specifically and in no uncertain terms makes it clear that species extinction runs contrary to the general welfare of society and that nonhuman species “are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people” (emphasis added).Footnote ⁷³

Our analysis shows, moreover, that the ESA is not primarily about the health, safety, or general welfare of human beings, but of listed species. As our analysis also shows, the act gives listed species de facto legal standing by means of the citizen-suit provision. Therefore, enforcement of the ESA without compensating adversely affected landowners falls within the government's police powers. That the courts consistently recognize that it does, as Arnold notes, further bolsters our argument that the implicit issue of the ESA is the health and safety of the listed species, and that they have, in effect, legal standing, which the U.S. government is morally obliged to protect.

When conservatives controlled the Congress as well as the presidency, we should not have been surprised to see the ESA under assault. HR 3824, a bill to amend the ESA, was passed by the House of Representatives in 2005 and sent to the Senate, which, fortunately, took no action on it. In the now-popular Orwellian fashion of green-washing anti-environmental policy and legislation with innocuous, even progressive-sounding labels, the bill was titled “Threatened and Endangered Species Recovery Act of 2005.” In addition to compensating property owners for putative opportunity losses from the existing budget allocation of the Department of the Interior, it directed the secretary to list new species “sparingly,” and, in doing so, it would have empowered the secretary, a political appointee, to decide which data represents the “best scientific data available.”Footnote ⁷⁴ Worst of all, perhaps, it would have flatly repealed the authority of the secretary to designate critical habitat. Its principal sponsor, Richard Pombo, was defeated in his reelection bid in 2006—thanks in part to a concerted effort by environmental groups—as were many of his Republican colleagues. Thus, with Congress currently controlled by Democrats, the ESA is safe for the time being from congressional attack.

V. Judicial Attacks on the Endangered Species Act

The favorable judgment of Palila v. Hawaii Department of Land and Natural Resources, a case initiated in 1979, was upheld, on appeal, in 1988, at which time, as we have noted, the appellate court appeared to grant standing, unequivocally, for a listed species to sue “in its own right.”Footnote ⁷⁵ In a subsequent case, Marbled Murrelet v. Pacific Lumber (1995), the defendants challenged the standing of the named species, a seabird that nests in towering old-growth redwood and Douglas Fir forests within thirty miles of the North American Pacific Coast. Citing and quoting the appellate court's 1988 Palila ruling, a California district court allowed suit to be brought in the name of the injured species and expressly granted it standing, specifically stating that “as a protected species under the ESA, the marbled murrelet has standing to sue ‘in its own right.’ ”Footnote ⁷⁶

In Loggerhead Turtle v. County Council of Volusia County, Florida (1995), the standing of the Loggerhead and Green sea turtles was also challenged by the defendant, along with the standing of Shirley Reynolds and Rita Alexander, who joined the turtles as plaintiffs. A Florida district court declined to rule on the challenge to Reynolds's and Alexander's standing—the defendant claimed that “they are not interested in saving the turtles but only filed this action because they want to remove vehicles from beaches for their own personal enjoyment”—and accepted jurisdiction for the case solely on the strength of the turtles' standing, citing Marbled Murrelet v. Pacific Lumber as precedent to do so: “The Court shall not inquire at this stage into the individual Plaintiffs' motivations in bringing the instant action. Since both the Loggerhead sea turtle (caretta [sic] caretta) and the Green sea turtle (chelonia [sic] mydas) are named Plaintiffs in this action, the case will proceed regardless of the motivations of Shirley Reynolds and Rita Alexander.”Footnote ⁷⁷ On appeal, the appellant pressed the standing issue—not on the grounds that the plaintiffs were not human, but because, the appellant alleged, the turtles were not injured in fact by Volusia County and a decision in favor of the species against the county would not redress their injuries even if they were. The appellate court disagreed and ruled that there was in fact a “causal link” and that “[t]he Turtles have standing to sue Volusia County under the ESA's ‘take’ prohibition for its regulatory actions… .”Footnote ⁷⁸

Other courts had, however, disallowed listed species to sue on their own behalf. In 1991, the District Court of Hawaii ruled that the Hawaiian Crow (‘Alala) could not be named a plaintiff, because it was not a “person” as that term is defined by the ESA, and ordered “the ‘Alala's name stricken from the caption.”Footnote ⁷⁹ In the 1999 Coho Salmon case, the District Court of Northern California elaborated on the reasoning of the District Court of Hawaii in the Hawaiian Crow case:

In these and other suits brought in the name of listed endangered species, the scale was small. This or that single species (Palila, ‘Alala, Spotted Owl, etc.) sued this or that public or private party (a county, corporation, state department of natural resources, the current secretary of the interior) for relief. Thus, the suits ran pretty much under the judicial radar and could be ignored as amusing anomalies. But in 2003 a suit was brought on a global scale in the name not of a single species, but of a whole taxonomic order against the president of the United States (and his secretary of defense)—Cetacean Community v. Bush. The Cetaceans (whales and dolphins) sought relief from the United States Navy's use of Surveillance Towed Array Sensor System Low Frequency Active Sonar, which injures them, in fact, in various concrete and particular ways. The District Court of Hawaii agreed with the defendants, just as it did in the Hawaiian Crow case, that the Cetaceans lacked standing. The Cetaceans appealed and the Ninth Circuit Court of Appeals upheld the district court's ruling. But how could this ruling be consistent with the ruling by the same court of appeals in the Palila case?—a point argued by the Cetaceans to the Ninth Circuit in making their argument that the district court's opinion contradicted Palila.

The three-judge panel (Judges Procter Hug, Arthur Alarcón, and William A. Fletcher) of the 2004 Ninth Circuit hearing the Cetacean case agreed with the district court that the three-judge panel (Judges Diarmuid O'Scannlain, Mary Shroeder, and John Noonan) of the 1988 Ninth Circuit hearing the Palila case used “nonbinding dicta” when they wrote that the Hawaiian honeycreeper “has legal status and wings its way into federal court as a plaintiff in its own right.”Footnote ⁸¹ It was decided that the 1988 panel's “statements in Palila IV were little more than rhetorical flourishes. They were certainly not intended to be a statement of law, binding on future panels, that animals have standing to bring suit in their own name under the ESA.”Footnote ⁸² As the 2004 panel noted, “A statement is dictum when it is ‘made during the course of delivering a judicial opinion, but … is unnecessary to the decision in the case and [is] therefore not precedential.’ ”Footnote ⁸³ Because the honeycreeper's standing had not been challenged, the statements about the legal status of the bird and its being a plaintiff in its own right did not address points at issue and so could be rendered moot as dicta. Then shouldn't the Palila decision be overturned for lack of a plaintiff with standing to sue? No, because the species was joined as plaintiff by the Sierra Club, the National Audubon Society, the Hawaii Audubon Society, and Alan C. Ziegler, whose standing “had always been clear”Footnote ⁸⁴—despite Sierra Club v. Morton, we must suppose. However, in the Cetacean case, the Cetaceans were not joined by conventional plaintiffs and their standing was the central bone of contention in the case.

In Cetacean Community v. Bush, as in Coho Salmon v. Pacific Lumber, both the district and appellate courts reasoned that the language of the ESA forecloses any interpretation of the meaning of a “person,” who may bring suit, to include the injured species itself. As amended, ESA section 3(13) defines “person” to mean “‘an individual, corporation, partnership, trust, association, or an other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, or any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States.’ ”Footnote ⁸⁵ Even though the last clause appears to be so broad as to plausibly include listed species, as argued by the plaintiffs in the Coho Salmon case and the appellants in the Cetacean case, the appellate court in the Cetacean case contended that it does not—because section 3 also provides separate definitions of threatened and endangered “species,” and of “fish and wildlife.” Thus, the appellate court concluded: “It is obvious from the scheme of the statute, as well as the statute's explicit definitions of its terms, that animals are the protected rather than the protectors…. [Therefore, a]nimals are not authorized to sue in their own names to protect themselves.”Footnote ⁸⁶ Thus, if the title of this essay were “Do Endangered Species Have Standing?” after Cetacean Community v. Bush, the best answer would be “No!” Because the Ninth Circuit did not narrowly disallow the Cetaceans standing on the basis of a technicality, but did so on the basis of a very general interpretation of the ESA that would apply to any listed species, its ruling is likely to have a chilling effect on any other federal court that might be tempted to grant standing to a listed species under the provisions of the ESA.

But “No” would not necessarily be the final answer. Interestingly, in Cetacean Community v. Bush, Judge William A. Fletcher, who wrote the opinion, noted that there is nothing in the Constitution to prevent threatened and endangered species from being plaintiffs in their own right, if Congress so ordained. Indeed, Fletcher quotes Christopher D. Stone, who in defense of his own proposal to grant standing to trees and other environmental entities wrote, “‘The world of the lawyer is peopled with inanimate rights holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention but a few.’ ”Footnote ⁸⁷ Thus, if the ESA had specifically included threatened and endangered species under its definition of “person,” they could, constitutionally, sue in their own names. Accordingly, Katherine Burke has suggested the possibility of amending the ESA to permit them to do so statutorily.Footnote ⁸⁸

VI. The Citizen-Suit Provision Judicially Threatened, Then Strengthened

Even though, after Cetacean Community v. Bush, listed species cannot sue in their own names and in their own right, it makes no practical difference. Being wild and mute, the only way they could sue is by way of a representative proxy. They may no longer be recognized to have actual legal rights and de jure standing, but they still do have operational legal rights (in Stone's sense) and de facto standing. If a threatened or endangered species retained standing to sue as its own protector, it must necessarily be represented by a lawyer or a guardian ad litem, just as any other “incompetent” plaintiff must be. But because the ESA provides that any human “person,” as defined by the act, has standing to sue as its protector, regardless of injury to him- or herself, the practical effect is the same: it has a protector able to litigate on its behalf, for injury to it, and the remedies of a favorable judgment run to its benefit.

Or does it have such an attorney or guardian in Mr. or Ms. Any Person? After the landmark TVA v. Hill decision, which warmly endorsed the ESA's citizen-suit provision, the judiciary became more and more conservative, and jurists became increasingly uncomfortable with an inherent tension between their familiar application of Article III standing requirements and the way Congress appears to have ignored or set aside the “irreducible constitutional minimum of standing” by declaring that “any person” may bring suit under the provisions of the ESA. A 1992 Supreme Court decision, Lujan v. Defenders of Wildlife, threatened to undercut even the operational (or de facto) standing and legal rights of threatened and endangered species by questioning the constitutionality of the ESA's citizen-suit provision.Footnote ⁸⁹

In 1987, Defenders of Wildlife (Defenders) and other environmental organizations sued the secretary of the interior to abandon a revised regulation—promulgated in 1986 by the Reagan administration—exempting federally funded agencies abroad from the consultation provisions of the ESA.Footnote ⁹⁰ For example, under the new regulation the secretary of the interior could exempt the U.S. Agency for International Development (USAID) from consulting the secretary of the interior about the possible adverse affect that a project it plans to assist in another country might have on a listed species. The district court granted Secretary Donald Hodel's motion to dismiss for lack of standing, but the plaintiffs appealed to the Eighth Circuit Court of Appeals. In Defenders of Wildlife v. Hodel (1988), the Eighth Circuit reversed the district court's decision, based, in part, on ESA's citizen-suit provision.Footnote ⁹¹ After all, section 11(g)(1) of the ESA—the citizen-suit provision—plainly states that “any person may commence a civil suit” against the secretary of the interior to compel enforcement of the provisions of the act. In the interpretation of the Eighth Circuit, however, the ESA's citizen-suit provision can only eliminate the prudential limitations on standing that courts often add to the so-called irreducible constitutional minimum.Footnote ⁹² Among these additional prudential limitations on standing is that “the plaintiff's complaint must fall within ‘the zone of interests’ to be protected by the statute at issue.”Footnote ⁹³ Thus did the Eighth Circuit work out the inherent tension between legislative mandate and judicial precedent: “Environmental Associations are ‘persons’ and may bring suit in their own name. [16 U.S.C.] at § 1532(13). Defenders therefore need meet only the constitutional requirements for standing for their claims under ESA.”Footnote ⁹⁴

And, according to the appellate court, Defenders did meet the constitutional standing requirements. For one thing, according to the opinion of the Eighth Circuit Court, merely “[a]n interest in aesthetic, conservational, and recreational values will support standing when an organizational plaintiff alleges that its members use the area and will be adversely affected.”Footnote ⁹⁵ The two-person majority (John R. Gibson and Roger L. Wollman) of the three-person panel of the appellate court in this case appears to have been trying its best to reconcile the plain language of the citizen-suit provision of the ESA with a long-standing jurisprudential interpretation of Article III of the U.S. Constitution. First, it interpreted the citizen-suit provision of the act to waive only prudential limitations on standing, not constitutional requirements. Then it interpreted the constitutional requirements so broadly that “any person” could meet them. In his dissent, Circuit Judge Pasco M. Bowman frankly acknowledged that there appears to be an irreconcilable conflict between explicit legislative mandate and sacrosanct jurisprudential tradition:

Judge Bowman concludes: “Surely Congress did not intend this provision to be read in a vacuum, without regard to constitutional limitations.” But there is nothing in the record, and certainly not in the law itself, to indicate that Congress did not intend to mean just what the law states, “read literally.” Members of Congress are often lawyers, but few have been jurists. And there are, in fact, no limitations on standing in Article III of the Constitution, which nowhere even mentions standing, as we have already pointed out. Thus, while many members of Congress may be well-versed in the particulars of the Constitution, they might still be unaware of the “constitutional” standing requirements desultorily imposed by the federal courts. Rather, there is a long tradition of case law that has Talmudically devolved standing limitations from what Article III of the Constitution does mention: “cases” and “controversies”; and unless members of Congress were close students of that confused and often contradictory arcana, they would have no clue that standing requirements were “constitutional.” Nevertheless, as Judge Bowman points out, “it is the courts, not Congress, which must decide whether Article III, Section 2 of the Constitution has been satisfied in the circumstances of the particular case.”Footnote ⁹⁷

In the face of the Eighth Circuit's decision in Defenders of Wildlife v. Hodel, the aggrieved secretary of the interior, by then Manuel Lujan, did not give up easily. In 1988, the case was remanded back to the district court, which issued a summary judgment and “ordered the Secretary to revoke and rescind the portion of the regulation limiting the consultation duty to agency actions in the United States or upon the high seas, and to publish proposed regulations clearly recognizing that the consultation duty applies to agency actions affecting endangered species wherever found.”Footnote ⁹⁸ The secretary again appealed to the Eighth Circuit, once again arguing, among other contentions, that Defenders lacked standing—the burden of proof for which being greater in matters of summary judgment than, as previously, to withstand a motion to dismiss. This time the Eighth Circuit affirmed the ruling of the district court; that is, it found once again in favor of Defenders. The secretary appealed to the Supreme Court, which agreed on May 13, 1991—a dark day for Mr. and Ms. Any Person and those whom they would protect—to hear the case.

In order to bear the heavier burden of proof for standing to make a summary-judgment motion in the district court, Defenders of Wildlife filed affidavits from two members, Amy Skilbred and Joyce Kelly, both conservation scientists (and the latter the president of the NGO) attesting to threatened personal injury, both substantive and procedural, caused by the new regulation. Putatively, Kelly's interest in making future observations of the Nile crocodile and Skilbred's in making future observations of the Asian elephant and leopard would be variously harmed by specific projects going forward with USAID assistance.

In Lujan v. Defenders of Wildlife (1992), Justice Antonin Scalia, opining for the majority, argued that the alleged injuries of Skilbred and Kelly did not rise to the level of standing as rooted in Article III of the Constitution and elaborated in numerous precedent cases, among them Sierra Club v. Morton. The Supreme Court reversed the decision of the appellate court, ruled in favor of the secretary, and remanded the case for a judgment consistent with its ruling. Scalia, however, did not leave it at that. He questioned the constitutionality of section 11(g)(1) of the ESA, rightly understanding it not as intended to prohibit the courts from adding prudential limitations on Article III standing, but as meaning what it plainly says: that any person, whomsoever, could initiate a suit in the United States district courts to enforce the provisions of the act:

Stephen M. Johnson and Robert B. June have reviewed the question of citizen-suit provisions in general and the constitutional separation of powers.Footnote ¹⁰⁰ According to our argument here, the operational legal rights and de facto standing of listed species turns on the citizen-suit provision of the ESA. Justice Scalia has put his finger on the central reason that the standing issue under the ESA has been so confused and the case law so contradictory. The legislative branch of the U.S. government confers on any and all persons a right that the judicial branch of the government is loath to grant. So is it any wonder that plaintiffs feel obliged to join with listed animals, NGOs (some of whose members might have a claim to injury in fact), and severally aggrieved private individuals in order to be allowed to proceed? Apparently, they feel the need to do this because they don't know what standing criteria will be invoked by what court.

The judicial branch of the government, in any event, has the final authority to declare a law made by the legislative branch unconstitutional, as Judge Bowman points out. If Scalia's opinion in Lujan v. Defenders of Wildlife were precedential, the citizen-suit provision of the ESA would have been invalidated not only on Article III grounds, but also on Article II grounds, because it usurps the powers of the executive—at least as understood by the “unitary executive” theory popular among conservatives.Footnote ¹⁰¹ However, because the central issue in that case was not whether the citizen-suit provision was constitutional, but whether environmental organizations had standing to sue, based on the claim that some of their members severally (Kelly and Skilbred in particular) would be injured in fact by the secretary's regulation, Scalia's attack on the citizen-suit provision appears to be dicta—ominous dicta, but nonbinding dicta, nevertheless.

Fortunately, when the ESA's citizen-suit provision came before the Supreme Court in 1997 as the issue in contention, it did so in a way that so attracted conservative support that its constitutionality was expressly affirmed—by Justice Scalia, no less, opining for the Court's unanimous judgment. In Bennett v. Plenert, the district court of Oregon had ruled that the plaintiffs lacked standing under ESA's citizen-suit provision, essentially because they were not environmentalists suing on behalf of endangered species.Footnote ¹⁰² They were, rather, two irrigation districts and two ranchers suing, in accordance with the citizen-suit provision of the ESA, to reclaim their access to water from a series of reservoirs on the Klamath River in northern California and southern Oregon, which was jeopardized by FWS regulations protecting two listed species of fish. The plaintiffs claimed that the federal agencies involved had not given due consideration to the economic impact of the regulation, which the act, as amended, also requires. The Ninth Circuit Court of Appeals affirmed that the plaintiffs lacked standing because their concerns fell outside the “zone of interest” sought to be protected by the act.Footnote ¹⁰³

In Bennett v. Spear (1997), the successor to Bennett v. Plenert, Justice Scalia first revisits the standing requirements rooted in Article III of the Constitution, as devolved through many precedent cases over many decades—including both Sierra Club v. Morton and his own Lujan v. Defenders of Wildlife, both of which, if anything, narrowed the requirements. In addition, as we have noted, the courts may further restrict standing by imposing “prudential limitations,” such as the “zone-of-interest test.”Footnote ¹⁰⁴ According to Scalia, constitutional limitations are both “immutable” and an “irreducible … minimum,” but prudential limitations may be “modified or abrogated by Congress.”Footnote ¹⁰⁵ Accordingly, “The first question in the present case [Bennett v. Spear] is whether the ESA's citizen-suit provision … negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does.”Footnote ¹⁰⁶ The parenthetical remark is cryptic and ambiguous, but, as we shall see, it seems to mean that Congress can, after all, finesse the immutable and irreducible constitutional minimum required for standing by expanding the zone of interest circumscribed by a legislative act. Scalia notes that the citizen-suit “provision says that ‘any person may commence a civil suit,’ ” and he comments that it is “an authorization of remarkable breadth when compared with the language Congress ordinarily uses….”Footnote ¹⁰⁷ Then he goes on to say:

By “subject matter of this legislation” in the first sentence of this passage, and by “subject of the legislation” in the last, Scalia appears to be referring to the “zone of interest” of the ESA, which Congress intended to be so expansive as to give “any person” Article III standing, which intent is conveyed by the extraordinary language of the citizen-suit provision of the act. Given Scalia's very stringent interpretation of Article III standing requirements in Lujan v. Defenders of Wildlife, which was reiterated in Friends of the Earth v. Laidlaw Environmental Services (2000), it is, however, very hard not to think that the ESA's citizen-suit provision expands standing not just “to the full extent permitted under Article III,” but well beyond what is permitted under Article III as interpreted by the Court through precedential case law over many decades.Footnote ¹⁰⁹ Indeed, that is just what Scalia wrote in the dicta of his Lujan v. Defenders of Wildlife majority opinion. Fortunately, the more recent Bennett v. Spear decision not only contradicts but lays to rest that dicta. In any event, Bennett v. Spear at last reconciles the conflict—which had bedeviled and confounded litigation under the ESA—between legislatively granted standing and judicially denied standing to plaintiffs, who seemingly were not particularly, materially, and concretely injured in fact. Actions that adversely affect the environment injure all persons; hence, all persons meet Article III standing requirements as they have evolved through case law—or so Bennett v. Spear appears to rule.

Because it was a victory for plaintiffs seeking to redress economic grievances, not to protect endangered species, Bennett v. Spear may appear to be a battle lost for the cause of species preservation—just what one would expect from a decision crafted by Justice Scalia.Footnote ¹¹⁰ While it may indeed be a battle lost for the cause of species preservation, it also appears to be a more far-reaching victory for the crucial but controversial and confounding citizen-suit provision of the ESA, on which turn the operational rights and de facto standing of listed species. Not only does Bennett v. Spear confirm the constitutionality of the citizen-suit provision, but by creating a more equal balance between environmental and economic interests, it may relieve pressure on Congress to dismember the act.

VII. Executive Attacks on the Endangered Species Act

By suing Secretary Hodel, Defenders of Wildlife sought to protect the ESA from an attempt to weaken it by the executive branch of government—in that case, by the Reagan administration.Footnote ¹¹¹ As noted, the regulation promulgated by Hodel would relieve U.S. government agencies assisting development projects outside the country (and not on the high seas) of the need to consult with the FWS if there were a possibility that those projects would harm a listed species, such as the Asian elephant or the Nile crocodile. In its waning months in office, the administration of George W. Bush apparently attempted to use a similar, but far more radical, regulation change to weaken the ESA. On August 15, 2008, Secretary of the Interior Dirk Kempthorne announced a regulation relieving U.S. government agencies assisting development projects within the country of the requirement to consult with FWS scientists if they themselves determine that no listed species will be harmed.

In a press release, the Center for Biological Diversity (CBD), an environmental NGO, claimed that this change “would eviscerate protections for endangered species by excusing thousands of federal activities … from review under the [Endangered Species] Act.” As the same press release more calmly explained,

We should note that these changes in the regulations, which officially went into effect on January 15, 2009, were characterized as “narrow” and “minor” by the Bush administration.Footnote ¹¹³ We should also note that the changes were provoked by the stated intention of some environmentalists to use the ESA as a tool to reduce greenhouse emissions. The idea was to get the polar bear listed as endangered because of the reduction of the summertime Arctic sea ice on which it hunts, due to global warming. Then, the scheme went, such things as proposed new coal-fired power plants (which would emit greenhouse gases) could be stopped from being built, under the existing ESA consultation process. In defending his proposed changes, Secretary Kempthorne made it clear that he was responding to what the administration perceived to be chicanery by overreaching environmentalists:

Of course, it may also be true that the new regulations are a case of counter-chicanery by an overreaching conservative administration. The alarm expressed by the litigious CBD was anticipated in a letter, written on August 25, signed by Senators John Kerry, Barbara Boxer, Chris Dodd, Hillary Rodham Clinton, Sheldon Whitehouse, Bernard Sanders, and Frank R. Lautenberg—all Democrats—asking the secretary to “withdraw this proposal” and demanding a “comment period of at least six months” (exactly the time needed for the Bush administration to be replaced by, they must surely have hoped, a Democratic administration more sympathetic with environmental concerns, an administration that would likely abandon the proposed changes in the regulations).Footnote ¹¹⁵ The Ecological Society of America expressed its concern that the proposed changes to the regulations would abrogate the “concept of independent scientific review” and “place the fate of rare species in the hands of government stakeholders who are not qualified to assess the environmental impacts of their activities.”Footnote ¹¹⁶ At least nineteen newspaper editorials, including one in the New York Times, echoed the fear of environmental groups (most stridently expressed by the CBD), prominent Senate Democrats, and professional ecologists that the Bush administration itself was erecting a new policy, outside our normal system of political accountability, regarding endangered species.Footnote ¹¹⁷

A close reading of the changes, as specified, explained, and justified in the Federal Register, reveals that some are indeed “narrow,” but not in the sense that Kempthorne insinuates. Rather, the “cumulative effects” of an action are narrowed from “reasonably foreseeable” to “reasonably certain to occur.”Footnote ¹¹⁸ The “effects of the action” are narrowed to “a close causal connection between the action under consultation and the effect that is being evaluated,” such that “the effect would not occur ‘but for’ the action under consultation and the action is indispensable to the effect.”Footnote ¹¹⁹ This change is directed straight at foreclosing use of the ESA as a backdoor climate-change policy tool. The effects of global climate change on polar-bear survival would not be measurably mitigated by stopping a specific action under consultation—say, approving the building of one coal-fired power plant. At the same time, “biological assessment” is broadened to include documents that provide relevant information prepared for another purpose, sparing agencies the need to “create a new document to comply with the requirement for a biological assessment.”Footnote ¹²⁰ Doubtless this is what alarmed the ecologists, as it would allow a biological assessment to be garnered from a document prepared by a bureaucrat or an engineer. Most of the outrage, however, centers on the following change:

The CBD dubs this provision “self-consultation” and argues that it has “already been tried—and it failed miserably.”Footnote ¹²² Defenders of Wildlife has joined the chorus of Jeremiahs claiming—it would seem hyperbolically, in view of the regulatory language just quoted: “if the Service concurs in writing”—that “the Bush proposal would allow federal agencies to decide on their own if they think their actions would negatively impact a threatened or endangered species. If the agency decides the answer is ‘no,’ independent experts at FWS and NMFS would never have the opportunity to review the decision. While the action agency would theoretically still be responsible if harm occurs, it would take a citizen lawsuit against the agency to halt or alter the destructive activity. Citizens and courts would be forced to provide the independent checks and balances now provided by FWS and NMFS experts.”Footnote ¹²³

Defenders of Wildlife's invocation of the citizen-suit provision of the ESA returns us to the main theme of our argument. It is noteworthy that, in defending its regulatory changes, the Bush administration takes the citizen-suit provision of the ESA at face value (that is, as finessing Article III standing requirements) and invokes it as a powerful deterrent to action agencies that might think that the new regulations allow them to give only a wink and a nod to the consultation process: “The Act contains provisions that create a huge incentive for federal agencies to make the correct determination. If an action results in harm or harassment of a listed species—what is known in the law as ‘take’—the agency and its officials could be subject to civil and criminal penalties. Additionally, the Act's citizen suit provision creates a very real incentive for agencies to act in accord with the law.”Footnote ¹²⁴

The hue and cry over the regulation changes of January 15, 2009, may have been so loud less because of the simplification of the consultation process than because the changes foiled plans to use the ESA, once more, to achieve a goal other than protecting a listed species. The snail darter was only a stalking horse for the opponents of the Tellico Dam; and the polar bear was to be the stalking horse for opponents of the Bush administration's do-nothing policy in the face of global climate change. Whether the hotly contested regulation changes survive their opponents' attempts to have them reversed or, if they survive the opposition, how seriously they will weaken the ESA remains to be seen at the time of this writing.

Less widely noticed and far less bitterly contested was a Bush administration “formatting change” in the ESA proposed on August 5, 2008—a change that seems to us to be more damaging to the ESA and the species it protects. The change is to the format of the listed species in various columns, such as “Scientific name,” “Common name,” “Status” (i.e., “threatened” or “endangered”), “Where listed,” and “Historic range.” The new formatting rearranges these columns in what the FWS claims is a more logical order and then declares:

The “Where listed” column is a regulatory column. Thus, if this formatting change stands, a species is protected only where listed, not throughout its entire historic range if, since being listed, it may later be found elsewhere in its historic range. As the CBD points out, the gray wolf “was listed as endangered in the lower 48 states and as threatened in Minnesota in 1976. If this supposed ‘formatting’ change had been in place at that time, the wolf could not have been listed in the lower 48 states where it was not found. Likewise if the change had been enacted just after the California condor went extinct from the wild, the magnificent bird would have only been protected in zoos.” This appears to be a correct and not a hyperbolic interpretation of the implications of the formatting change of the outgoing Bush administration.Footnote ¹²⁶