Butterflies, Cave Spiders, Milk-Vetch, Bunchgrass, Sedges, Lilies, Checker-Mallows and Why the Prohibition Against Judicial Balancing of Harm Under the Endangered Species Act is a Good Idea

Abstract

Since 1978, at least, it has been the received wisdom that the Endangered Species Act of 1973' prohibits courts from balancing the value of protected species against the value of the economic activities their protection might displace. In this article, I argue that the orthodoxy makes sense. The Endangered Species Act, as currently administered, cannot tolerate judicial balancing of species harm and economic dislocation while still honoring the purpose of the statute - the preservation and recovery of protected species and the ecosystems on which they depend. The inadvisability of a balancing approach to species preservation under the Act is not the function of a value judgment exalting animals over humans. Rather, it is the direct result of the administrative and judicial application of the Act's listing process. The agencies charged with making the administrative determinations as to what constitutes an endangered species have interpreted the statutory definition to cover only species dramatically reduced in distribution and numbers and, generally, subject to multiple threats. It is a bad idea to balance the value of most endangered species against the economic cost of their protection because their circumstances are so precarious. Once a species is perched on the brink of extinction, compromise becomes unacceptably dangerous; what may look like "reasonable" accommodation may lead to annihilation. If we really intend to protect species from extinction, the allowable minimum level of regulatory prohibition and active management is that level necessary to insure a good chance of species survival in the long term (however defined). Because we only list species in dire need of protection and assistance, this "minimum level of protection" generally requires, at least, the level of regulatory prohibition the Endangered Species Act provides.