January 01, 2015

Developments in ESA Citizen Suits and Citizen Enforcement of Wildlife Laws

Kirsten Nathanson, Thomas R. Lundquist, and Sarah Bordelon

For decades, private individuals and activist organizations have used citizen suit provisions in federal environmental laws to stop unlawful conduct, effectuate regulatory and policy changes within federal agencies, and halt private commercial activity. One of the most interesting, dynamic, and disruptive modes of citizen suit enforcement has been under the Endangered Species Act (ESA). Unlike other federal environmental laws that seek to balance environmental protection with economic betterment, the ESA is focused almost exclusively on protection of endangered species. That singular statutory focus can produce harsh results. In one of the first major ESA citizen suits, the Supreme Court found that the ESA required an injunction against an almost-completed dam in TVA v. Hill to protect the snail darter. 437 U.S. 153 (1978). Echoes of that opinion, such as the suggestion that the ESA mandates protection of endangered species, regardless of cost, still resonate with courts today.

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