Statutory Redundancy: Why Congress Should Overhaul the Endangered Species Act to Exclude Critical Habitat Designation

Abstract

There is much debate concerning the enforcement of the critical habitat designation provisions of the Endangered Species Act. Most scholars argue that the Secretary of the Interior abuses the “not prudent” and “not determinable” exceptions to avoid making such designations when endangered or threatened species are listed. The Endangered Species Act of 1973 was enacted to achieve the dual goals of species conservation and species recovery, achieved primarily through ecosystem conservation. Section 7 of the Endangered Species Act requires all federal agencies to consult with the Secretary of the Interior to evaluate the consequences of proposed federal actions to ensure they neither jeopardize the existence of the endangered species nor destroy or modify a designated critical habitat. Because these standards overlap, the critical habitat designation provision should be excluded from the Endangered Species Act, since it serves as nothing more than a weapon for environmentalists to block land development. It forces the Department of the Interior to spend its time defending lawsuits, rather than listing more species and thoroughly analyzing federal actions that may jeopardize vital ecosystems.