Wednesday, March 30, 2011
Recently, Dave Owen posted his latest article, Critical Habitat and the Challenge of Regulating Small Harms, on SSRN (available here). He also recently accepted an offer to publish the piece in the Florida Law Review.
Of course, critical habitat has been a major topic of debate and an evolving aspect of Endangered Species Act law. Much of this debate, however, has often surrounded disagreements about policy and focused on how the Fish and Wildlife Service and the National Marine Fisheries Service ought to administer the law. Frequently however, focus on the how ought has been accompanied by the tendency to overlook the how are. Indeed, documentation of how FWS and NMFS actually administer the ESA is generally spotty at best.
Owen’s article makes significant inroads by providing some much needed missing empirical evidence, particularly evidence relating to how agencies treat their obligation to assure federal projects do not “result in the destruction or adverse modification of habitat.” He does this by gathering, coding and distilling an impressive collection of biological opinions (slightly more than 4000 opinions the agencies prepared between 2005 and 2009), reviewing judicial decisions, and through interviewing staff within FWS and NMFS.
Those with an interest in the administration of the ESA owe it to themselves to read the article. What better way to really understand critical habitat than by getting into the weeds?
-- Brigham Daniels