Coping With the Endangered Species Act Process
Part I of this paper opens the analysis with an exploration of the qualities of the ESA which most directly pose hurdles to coping by the regulated community. The ESA is unusual among federal environmental protection statutes with respect to how and when it operates. Its application timing is often unpredictable and its regulatory effects can be “slippery.” In short, it can be very difficult for a project planner to anticipate and plan for the timing and scope of effects of the ESA on the project. More so than most other laws, therefore, the ESA requires that the regulated community cultivate and take advantage of coping strategies designed to soften the blow of unpredictable regulatory consequences.
Those coping strategies vary both in nature and effectiveness based on the most important feature of the ESA for these purposes—the status of a species as “listed” or not. The ESA's numerous and powerful species protection measures accrue only upon the designation of a species as threatened or endangered. This does not mean, however, that ESA coping begins only upon the listing of a species fond on or near a project. As Part II of the paper shows, project planners must integrate ESA coping strategies into project planning at the earliest possible stages of project design and even before any listed species are detected in the project area; otherwise, the prospect of a spe
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