January 01, 2015

Like a Sitting Duck: Taking Aim at Modernizing ESA to Balance Species Conservation and Energy Extraction

Brandon H. Barnes and Bennett E. Resnik

While the goal of the Endangered Species Act (ESA) is to protect endangered and threatened species by restricting human use of their habitats, the statute has been accused of unduly impairing the ability of industry and property owners to productively use their land. Over the last decade, listing species under the ESA has substantially impacted economic interests, disproportionately affected energy producers, and burdened land owners. Modernizing the ESA could harmonize species conservation with oil and natural gas activities, wind farms, and hydropower operations. With growing concerns over “sue and settle” tactics from environmental advocacy groups using the ESA to block energy development and corresponding economic harms to property owners and developers, we need to reexamine the ESA to balance species conservation, land use, and development. The following reviews a brief history of the ESA, some perceptions of the law’s impacts on interest groups, and an overview of some of the case law focusing on energy extraction-related issues. In conclusion, we propose three fundamental changes to the ESA rulemaking and implementation process.

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