Wednesday, November 9, 2011
J.B. Ruhl (Vanderbilt) has posted The Endangered Species Act's Fall from Grace in the Supreme Court on SSRN. Here's the abstract:
Thirty-five years ago, the Endangered Species Act (ESA) had as auspicious a debut in the United States Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed in judicial opinions, on environmental lawyers’ short list of important cases, a mainstay of law school casebooks, and a lively focus of legal scholarship. As it turns out, however, Hill has become the extreme outlier in the Court’s ESA jurisprudence. In a series of four decisions spaced out from 1992 to 2007, two focused on standing doctrine and two on statutory substance, the Court has silently but unmistakably eviscerated Hill, thereby knocking the ESA off its pedestal.
This Article is the first to examine the ESA’s remarkable fall from grace in the Court as a measure of where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law. Part I of the Article provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill decisions in their jurisprudential contexts. The body of the Article then moves through three lessons Hill’s unruly successors have to offer. First, Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the environment as a context for decisions. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while it suggests the Court has at times been apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the history of the ESA in the Court about the design of environmental law, particularly those aimed at ecosystem protection and biodiversity conservation.