Predictions and prescriptions for the Endangered Species Act.

I.   INTRODUCTION
II.  CANARY IN A COAL MINE: THE ESA AS AN INDICATOR OF
     ENVIRONMENTAL LAW TRENDS
     A. The ESA Reflects Resource Management Law
        1. Consultation Requirements
        2. Take Prohibitions
        3. Land Acquisition
     B. The ESA Reflects Pollution Control Law
        1. Citizen Suits
        2. Cooperative Federalism
        3. Substantive Criteria Through Permitting
     C. Conclusion
III. THE DIRECTOR'S CUT: THREE ALTERNATIVE VIEWS OF THE PAST
     A. The Fall from Grace
     B. Onward and Upward
     C. The Roller Coaster
IV.  PRESCRIPTIONS FOR ESA RECOVERY
     A. Funding the Program
     B. Technology-Based Limitations to Protect Habitat
     C. Preventive Health Care for Biodiversity
V.   CONCLUSION

I. INTRODUCTION

The thirtieth anniversary of the enactment of the modern Endangered Species Act (ESA) (1) provides an excellent opportunity to look back and muse about the future of environmental law. There is no magic to the number thirty, whose roundness is a fluke of out base-ten numerical system. (2) But three decades is an adequate time span within which to discern the slow and deep trends in public policy. The ESA bridges the divide between the pollution control and resource management fields of environmental law. Thus, its history, successes, and shortcomings reveal the conjunction, strengths, and weaknesses of both fields.

Moreover, ESA disputes arise when the fabric of nature wears so thin that it begins to fray. Where degradation occurs steadily and in small increments, it is easy to overlook cumulative harms and continue business as usual. But the triggers of the ESA jolt us out of complacency and invite reconsideration of long-standing practices. (3) As Holly Doremus and Dan Tarlock have meticulously illustrated, the ESA played just such a role in the Klamath Basin, where endangered fishes forced the federal government to shut off irrigation water to farmers. (4) Federal reclamation law, state water law, and federal water quality law an failed to forestall accumulating problems of the basin. Finally, it was the ESA's "no jeopardy" mandate (5) that derailed the status quo and required the irrigation shutdown. This action brought to a head long-simmering problems of unsustainable practices that were impolitic and painful to address.

Without the ESA to force the issue, the Klamath Basin and its ecology surely would have continued their steady slide toward ruin. As the legal Cassandra, the ESA forces us to confront uncomfortable weaknesses in our environmental stewardship that cut across the entire spectrum of environmental laws. One example discussed in this Article is the almost complete lack of controls on environmental harms associated with agricultural activities. (6)

Despite its usefulness as a vehicle for exploring the broad issues of environmental law, the anniversary of the ESA presents some limitations. First, though the 1973 law dramatically departed from the limited authorities and mandates of prior legislation, it does not mark the beginning of federal species recovery efforts. Congress enacted its first law focused on endangered species protection in 1966. (7) But even that statute had roots that trace back to the 1900 Lacey Act, (8) which sought to restrict interstate traffic in wildlife contraband that was decimating many species through illegal market hunting. (9)

Second, the modern ESA did not hatch as a fully developed law in 1973. Significant revisions in 1978, 1982, and 1988 extended and strengthened the framework established in 1973. Moreover, the administrative decisions made in the 1980s and 1990s strongly influenced contemporary implementation.

However, compared to other environmental laws, the 1973 ESA was novel in its approach and reach. Furthermore, it has resisted persistent calls for major changes in its structure. The ESA serves quite well as a vehicle for examining the development of environmental law. The occasion of its thirtieth anniversary offers an irresistible excuse to suggest changes that are needed to set it, and the larger project of environmental protection, on course for greater effectiveness.

This Article begins by explaining how the ESA reflects both the resource management and pollution control traditions in environmental law. An evaluation of the ESA indicates more than just the status and trends of a single law. Like the canary in a coal mine, it responds to the legal atmosphere around it. The first Section demonstrates this by describing six key tools employed in the ESA and tracing their origins in other environmental law programs.

The second Section despairs at the viability of making predictions about the future of any environmental law, with special focus on the ESA. Most predictions made thirty years ago about the future of the ESA proved to be wrong. In addition, there are three inconsistent but equally plausible stories that describe the past thirty years of environmental law history. Therefore, there is little basis upon which to project past trends onto the future.

The third Section of this Article turns from predictions to prescriptions. More useful than venturing guesses about the future is describing what changes we need to make in order to fulfill the promise of the ESA. The major reforms necessary to maintain and recover species fall into three categories: better funding for the ESA program, technology-based limitations to control habitat degradation, and preventive care for biodiversity.

II. CANARY IN A COAL MINE: THE ESA AS AN INDICATOR OF ENVIRONMENTAL LAW TRENDS

More than any other environmental law, the ESA manifests the full range of attributes distinguishing the field from other areas of law. Implementation of the ESA has produced a record that mirrors the fate of many approaches to environmental law. Environmentalists often deploy the canary in a coal mine rationale to defend the ESA's unrelenting concern for the survival of all species: Extinction of any one life form is an indication of a weakening in the fabric of nature that might ultimately cause harm to us.

In another sense, the ESA itself serves as a canary to determine the viability of legal tools designed to achieve the public goals of environmental law. Changes underway in the use of legal mechanisms shared with other laws might signal trends that will soon shape the ESA. Understanding such changes will help in predicting the future direction of endangered species policy.

The ESA uniquely bridges the gap between the resource management and pollution control fields of environmental law. Though environmental lawyers and commentators generally sort themselves and their subjects into one of these two pigeon holes, they are closely related. Roughly speaking, resource management law controls the use of the environment as a source of valuable goods. It is rooted most directly in the concern for sustainable harvests of renewable products (e.g., timber, fish) and the allocation of nonrenewable treasures (e.g., minerals, wilderness). In contrast, pollution control law restricts the use of the environment as a sink for wastes. It is rooted most directly in public health concerns and problems of contamination. Though both branches of environmental law flourished in the wake of the social changes of the 1960s, both have been concerns of law for centuries. However, the federal government began playing a more active role in resource management much earlier than it did in pollution control, at least in part because of the huge amount of valuable resources it owned.

This Section describes how the ESA is an unusual hybrid of resource management and pollution control law. It illustrates this by tracing the development of six key tools employed in the ESA. The first three tool types originate in the century-old resource management tradition: consultation requirements, take prohibitions, and land acquisition. The second three tool types are more recent and are associated with the environmentalist reforms of the late 1960s and 1970s: citizen suits, cooperative federalism, and the application of substantive criteria through permitting. Like the well-adapted insects that, among all the animals, do most of nature's work, the ESA moves on six legs. If reforms to the ESA program are to succeed over the next thirty years, all six of these appendages of environmental law will have to operate in concert. An understanding of these six tools is necessary to see the limitations of and the opportunities for the ESA.

A. The ESA Reflects Resource Management Law

The aim of the ESA, to prevent extinction, is an extension of the great American wildlife law tradition of conservation. The resource management law roots of the ESA penetrate deeply into nineteenth century legislation responding to unsustainable hunting and trapping. The rise of the Progressive era conservation movement in the 1900s seeking to limit private exploitation of public natural resources led to numerous federal restrictions on what had been regarded as open commons.

In addition to its conservation objective, the ESA displays its resource management law heritage in its two key provisions. Section 7 of the ESA (10) is an outgrowth of a classic resource management tool: consultation. Section 9 of the ESA (11) borrows the language and approach of the harvest restriction laws originally designed to maintain game and other commercial animal populations at sustainable levels. Finally, though not now at the center of the ESA program, the provision authorizing land acquisition also resonates deeply with resource management law. (12)

1. Consultation Requirements

Like the Fish and Wildlife Coordination Act of 1934, (13) the ESA employs interagency consultation as a tool for improving decisions. (14) This common resource management law tool, which achieves its apotheosis in the National Environmental Policy Act (NEPA), (15) has long been used to force agencies to broaden their mission orientation to consider conservation concerns.

Under the 1934 law, federal permitees or agencies involved in water control or modification projects must consult with the United States Fish and Wildlife Service (FWS) regarding impacts on wildlife and mitigation. (16) Consultation is designed to slow down headlong rushes to complete ill-considered projects and to provide an outside opinion on possible consequences for biological resources. This is the heart of the 1973 ESA consultation procedure, which requires agencies authorizing, funding, or carrying out projects that may affect a listed species to consult with FWS or NOAA Fisheries (collectively, the Services) before proceeding.

The ESA represented a significant advance for the consultation tool. The Fish and Wildlife Coordination Act and its progeny, including the 1966 National Historic Preservation Act, (17) and NEPA, (18) require consultation and analyses of the effects of an agency's (or, permitee's) proposed action. However, they do not provide a substantive threshold of an impact beyond which the law will prevent the action from going forward. The 1973 ESA's "no jeopardy" standard added a powerful, substantive bite to the old resource management consultation procedure. Still, a surprising number of ESA disputes center, NEPA-like, around the adequacy of the consultation analysis. (19) The FWS field staff spends more time on consultation than on any other ESA program. (20)

2. Take Prohibitions

The prohibition on take in section 9 of the ESA (21) is an outgrowth of older resource management laws, most famously the 1918 Migratory Bird Treaty Act. (22) The take prohibition was first employed to limit wildlife harvest activities, such as hunting and trapping. When overexploitation is the chief threat to a group of species, take prohibitions are effective conservation tools. The take prohibition crops up throughout the last century in resource conservation laws, such as the 1966 National Wildlife Refuge Administration Act. (23) The definition of take broadened somewhat from the hunting-related terms of the 1918 law, (24) through the concern over collection in the 1966 law, to the 1973 inclusion of "harm" and "harass." The basic mechanism of prohibiting a class of activities harmful to species, unless specifically permitted by an agency, is a classic wildlife law tool.

From listed migratory birds in 1918 to listed threatened and endangered species in 1973, federal statutory law traces a steady arc of growth in the range of species (including eagles (25) and marine mammals (26) protected by take restrictions. The 1973 ESA broke new ground in two respects. First, it brought new kinds of species under federal harvest restrictions. In addition to the species valuable for sport hunting (such as ducks), commercial exploitation (such as ocean fishes), and national pride (such as bald eagles (Haliaeetus leucocephalus)), the ESA provides protection to any plant or animal on the brink of extinction other than certain insect pests. Such uncharismatic microfauna (and flora) as the Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis), the furbish lousewort (Pedicularis furbishiae), and the snail darter (Percina tanasi) received widely publicized protection under the ESA.

Second, the ESA expanded the traditional scope of take limitations, which formerly covered only direct hunting, collecting, harassment, or pursuing, to include harm. (27) Harm, undefined by the statute, is a broader term embracing indirect adverse effects to species, such as habitat destruction incidental to otherwise lawful activities. (28) Recent developments in the administration of the ESA now employ the harm limitation on habitat modification in a manner that encourages people involved in habitat-disturbing activities to develop conservation and mitigation plans. In this respect, the cutting edge of harvest method restrictions now overlaps with the broad scale regulation of private activities to protect habitat. (29)

3. Land Acquisition

Land acquisition to protect wildlife has its origins in the federal reserves set aside as refuges. This approach to resource conservation began to flourish with Theodore Roosevelt's 1903 proclamation protecting Pelican Island as a "preserve and breeding ground for native birds." (30) Roosevelt was responding to the decimation of egrets (Egretta spp.), white ibises (Eudocimus albus), roseate spoonbills (Ajaja ajaja), and other plumage birds hunted for the fashion and costume industry. (31)

The numbers of wildlife refuges did not significantly rise until Congress first authorized in 1929, (32) and then funded in 1934, (33) habitat acquisition to support waterfowl, (34) After that, land acquisition to support wildlife conservation became a central element in federal resource management. The Fish and Wildlife Act of 1956 (35) expanded the ability of the federal government to acquire wildlife refuge lands for any kind of habitat need. Coupled with funding from the Land and Water Conservation Fund established in 1964 legislation and expanded in 1966, (36) these land acquisition statutes created hundreds of national wildlife refuges. (37) Until the ESA, the refuge system was the principal federal program to sustain populations of imperiled species.

Indeed, the original 1966 Federal Endangered Species Preservation Act was one half of a two-part stature designed to advance conservation. (38) The other half is commonly called the 1966 National Wildlife Refuge Administration Act. Both laws were part of a single act. Land acquisition to protect and restore animals threatened with extinction was a key tool of the endangered species program. Many of those lands became parts of national wildlife refuges, managed under the Administration Act's consolidated authority for the refuge system.

Land acquisition has not been a dominant part of the ESA program as implemented. (39) But, in 1973, the drafters of the ESA thought it would be. Justice Scalia makes much of this legislative history in his dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. (40) His quotations from the House and Senate floor managers who identified land acquisition as an important solution to the habitat degradation problem represent the common understanding at the time. In addition, a key committee report from 1973 identifies the ESA land acquisition provision as relieving critical restrictions placed on the earlier refuge acquisition authorities. (41) Land acquisition does quietly hum along at a respectable magnitude of tens of millions of dollars per year but is nowhere near the centerpiece of species recovery. Almost immediately after enactment, the ESA caught the powerful current of the regulatory trends shaping pollution control law and was swept in a different direction.

B. The ESA Reflects Pollution Control Law

The ESA is very much a product of the great surge of pollution control legislation prompted by the modern environmental movement. This movement introduced new public health concerns about environmental quality into federal legislation. Richard Andrews, like many commentators, marks 1970 as the beginning of a "fundamentally new era." (42) In many ways, Congress enacted the 1973 ESA at the very crest of the wave of bipartisan support for new national laws protecting the quality of land, air, and water. (43) After the exhaustive debates and massive additions to the United States Code produced by the 1970 Clean Air Act (44) and 1972 Clean Water Act (CWA), (45) the ESA seemed like a slight, uncontroversial undertaking. It passed on a vote of 355 to 4 in the House (46) and unanimously in the Senate. (47)

As a product of its time in the midst of the period when national pollution controls arose, the ESA reflects important approaches pioneered in environmental quality lawmaking. This Section highlights three key approaches: citizen suits, cooperative federalism, and substantive criteria to control degradation activities through permitting.

1. Citizen Suits

Since 1946, the Administrative Procedure Act (48) bas provided a cause of action allowing aggrieved citizens to seek judicial review of agency decisions. (49) For most resource management statutes, this is the sole door through which stakeholders not the subject of an agency order may enter the courthouse. However, the pollution control statutes sought to widen public participation, in part, by making agency actions and regulated activities more vulnerable to legal challenges. The threat of suit would increase citizen leverage in working with an agency and judicial review would provide disinterested oversight of implementation. In this respect, the pollution control chapter of environmental legal history contributed to the broader reformation of administrative law. (50)

The ESA shares with the pollution control statutes a liberal citizen suit provision that spells out the complaints that courts must hear. (51) More significantly, though, the ESA adopted the approach of the CWA in allowing citizens to act as roving, private attorneys general. (52) Under this provision, any person may sue to enjoin any other person or agency that is alleged to be in violation of the law.

As Zygmunt Plater has pointed out, the citizen suit provision enabled environmental law to be "predominantly created and shaped by active citizens, operating from positions outside official ... governing institutions." (53) This pluralistic attribute of pollution control law goes beyond the Progressive reliance on agency expertise. It invites the "attentive monitoring" that distinguishes many of the outstanding successes in environmental law. (54)

The ESA is a particularly strong example of citizen-driven implementation. For instance, private litigation under the citizen suit provision has dominated the interpretation of the section 9 take prohibition as applied to habitat degrading activities. (55) Agency enforcement in this area has been miniscule. More broadly, citizen groups have played an influential role in shaping all aspects of the ESA program. For instance, litigation has driven the listing and critical habitat programs of section 4 for many years now. (56) Furthermore, litigation to force agencies to meet their section 7 duties to consult and to avoid jeopardy has had a profound effect on the ESA program. (57)

2. Cooperative Federalism

Another hallmark of pollution control legislation is the use of cooperative federalism. Cooperative federalism creates a set of minimum national standards that the federal government will implement, if necessary. However, it invites states to implement their own programs and criteria, so long as they rise above the floor established by the federal government. States typically are responsible both for issuing permits (e.g., Pollutant Discharge Elimination System permits for water pollution control) (58) and for designing comprehensive plans (e.g., statue implementation plans to reduce air pollution) (59) under guidelines set by the federal government. (60)

States and local jurisdictions have several incentives to work with the federal government to seek federal authorization for these pollution control programs. First, although they do not enjoy unbounded discretion under federal oversight, states do gain a fair amount of leeway in tailoring the program to their particular needs and goals. Second, through grants and cooperative agreements, participating states can get federal money. (61) Finally, the constituents of state and local governments frequently prefer to deal directly with their local governments than with federal agencies. Likewise, these state and local governments generally believe themselves to be less bureaucratic and more responsive to the needs of their area than the federal agencies.

With the federal backstop, pollution control laws prevent a race to the bottom without commandeering the state governments by "'directly compelling them to enact and enforce a federal regulatory program.'" (62) Indeed, the federal money flowing from pollution control legislation, though it comes with many strings, has been a significant source of public works funding and support for modernization of state administrative apparatus. The senior-junior partnership of cooperative federalism has been largely absent from federal resource management, where the federal government generally runs the entire show.

Section 6 of the ESA requires the Services to "cooperate to the maximum extent practicable with the States." (63) Like most federal pollution control statutes, which allow a state law to control if it is more stringent than the federal program, the ESA does not preempt a more protective state taking prohibition. (64) Despite some conflicting statutory language, (65) the federal ESA take prohibitions continue to preempt more permissive state rules even if the state rules are part of an approved cooperative agreement. (66) Section 6 contains programs to funnel management authority and funds to states developing programs, regulations, and reserves for listed species. The Services are required to approve any state conservation program that meets the statutory criteria. (67) Approved programs become cooperative agreements between the state and the Services. States are eligible to receive federal funding to cover up to 90% of the cost of an approved cooperative agreement. (68) Section 6 funding has increased steadily in the past dozen years, from 1% of the FWS budget in 1990 ($6.7 million), (69) to 3% in 2000 ($26.9 million), (70) to 9% in 2002 ($81.0 million), the most recently passed budget. (71) Also, a qualified state employee acting under a cooperative agreement may, under certain conditions, take a listed species covered by the agreement without risking section 9 liability. (72)

Though these programs have played a relatively minor role in ESA implementation compared to the similar cooperative federalism programs in the pollution control area, the ESA authorization is strikingly strong. (73) Cooperative programs are bound to play an increasingly important role in ESA implementation in the near future. Even more striking, but unsurprising given the period in which Congress enacted section 6, is the legislative history's emphasis on cooperative federalism. (74) Much of the discussion in hearings and the floor debate centered on the assurance that states would play a large role in implementing the ESA. (75) Without this understanding the law likely would not have passed by such overwhelming majorities. For instance, the 1973 report of the Senate bill emphasized that:

   [T]he most efficient way to enforce the prohibitions of this
   bill and to develop the most appropriate and extensive programs
   is through utilization of the agencies already established for
   such purposes within the States and development of the potential
   for such State programs where they do not already exist.... It
   was found that if the Federal government were to embark
   on an attempt to manage and regulate endangered fish and wildlife
   nationwide, administration would necessarily be considerably
   extended. The Committee decided that the most effective way to
   fulfill the provisions of the Act was through delegation of
   authority to approved State agencies. (76)

Though the enacted ESA cut back somewhat on the Senate bill's initial allocation of responsibility in favor of the states, the conference committee's compromise affirmed the importance of cooperative federalism. (77)

Unlike the pollution control cooperative agreements, the ESA has no provision to allow states to take over a federal permit program, i.e., section 10. Nonetheless, section 4(d) can be employed to allow states to create new (and use existing) permit programs to meet the recovery goals of the Act, while obviating the need for citizens to apply for federal section 10 permits. (78)

3. Substantive Criteria Through Permitting

The pollution statutes of environmental law employ prohibitions generally as gatekeepers to ensure that ail environmentally degrading activities are controlled through permits. Unlike the take prohibitions in traditional resource management law which constitute absolute proscriptions, the prohibitions in pollution control law merely trigger the requirement of agency approval. So, the CWA prohibition on the "discharge of any pollutant" (79) operates primarily as a basis for requiring dischargers to conduct their activities in accordance with substantive criteria in permits.

In 1973, the ESA prohibition against take was a classic resource management provision, drawing a line that no activity could cross. However, after the 1982 amendments, it became a basis for closer regulation of habitat degradation. The 1982 amendments created the section 10(a) incidental take permit program. (80) The permit allows otherwise prohibited harms (one element in the ESA definition of take is "harm") (81) in exchange for a habitat conservation plan (HCP) and a number of other commitments, such as steps to mitigate impacts and fund the HCP. (82) Congress created the permit program in 1982 at the request of a coalition of developers, municipal governments, and a local environmental organization. (83) These groups had reached an agreement to allow some harm to the endangered mission blue butterfly (Icaricia icarioides missionensis) from a new housing development at San Bruno Mountain, California, in exchange for a habitat preservation and enhancement agreement. (84)

The 1982 Amendments also altered the manner in which the ESA applies the "no jeopardy" criterion in section 7 consultation. Congress created an "incidental take statement" to be applied to section 7 in much the same manner as the incidental take permit. (85) After 1982, agencies that receive "no jeopardy" biological opinions may receive incidental take statements that authorize an otherwise prohibited section 9 take. (86) These statements come with conditions called "reasonable and prudent measures" that bind the agency. (87) When the agency action is to issue a permit, the reasonable and prudent measures condition the permitted activity. (88)

The top headline for ESA developments of the past decade is the growth of the HCP program through the issuance of incidental take permits. Up until 1992, the Services had issued only 14 permits. (89) Since 1992, the Services have issued almost 400 new permits. (90) Similar to the manner in which the discharge prohibition functions as a tool primarily to control rather than to eliminate the addition of pollutants to water, the take prohibition now functions as a tool to control habitat degradation rather than to prevent it.

The important gap in this analogy between the ESA and a classic pollution control statute is that in the ESA there remains a larger disparity between the capability of the permitting program and the Act's ultimate goal--recovery of the ecosystems upon which listed species depend. (91) In the CWA, the disparity between permitting and eliminating discharge slowly closes as technology-based effluent standards set zero discharge limits unless they are not economically feasible. (92) Also, ambient water quality standards are designed to promote incremental improvements over time, which may further reduce discharges. (93) In the ESA, the Services do not require incidental take permits to make progress toward recovery. (94) The incidental take permit is more oriented toward mitigating harm to species than toward improving their status.

This is one important reason why the next step in the development of the ESA program should be the adoption of permit standards that demand progress toward species recovery. Elsewhere, I have proposed more creative use of section 4(d) rules under the ESA as a tool for achieving both more effective cooperative federalism and permitting. (95) For the purposes of this Article, I will note only that those areas where the ESA fails to fully utilize statutory tools common to other environmental laws represent a menu of options for effective reform. Before prescribing some of those reforms, however, the next section sounds a cautionary note on the topic of predicting the direction of developments in statutory law.

C. Conclusion

What does it mean for the ESA to be a hybrid of resource management and pollution control laws? For one thing, it makes the ESA a useful indicator of the broad trends in environmental law. Because it covers such wide ground, the ESA manifests a wider range of programmatic attributes than most environmental laws.

Moreover, the ESA's hybrid status might endow it with a hardiness that allows for prompter adaptation. Because the statute provides administrators with so many kinds of tools for implementation, much is possible without statutory revision. The nimbleness of the ESA is best illustrated by its comparative success in incorporating the so-called "second-generation" and regulatory flexibility innovations. (96) The use of habitat conservation plans, candidate conservation agreements, and safe harbor agreements has significantly altered the administrative landscape of the ESA. (97) In contrast, EPA's attempts to implement regulatory reform through such programs as Project XL and the Environmental Achievement Track, (98) have barely made a dent in pollution control implementation.

III. THE DIRECTOR'S CUT: THREE ALTERNATIVE VIEWS OF THE PAST

The ESA is one of the only statutes that tracks changes in both the resource management and pollution control branches of environmental law. So, one way to venture predictions about the future of the ESA is to observe what has been happening to environmental law generally. This section examines three interpretations of the trends in environmental law.

The record for predicting how the ESA will play out should chasten all but the bold or foolish. (99) The legislative history of the 1973 statute indicates strongly that the expectations of contemporary commentators were unreliable in forecasting the future development of this legal program. The 1973 drafters who thought they were creating an endangered species protection program that would focus on cooperative agreements prompting states to assume the primary, on-the-ground role in recovery efforts were far off the mark. The other principal concerns of the 1973 discussion, i.e., creating different levels of protection for endangered species than for threatened species, and improving land acquisition authority, quickly dissipated in the rough and tumble of implementation.

One benefit we have in 2003 that commentators in 1973 lacked is the evidence of a trajectory created by thirty additional years of environmental law. In predicting the future, we might look at where we have been, and where we are, and trace that arc forward into the future. This Section describes three common views of the trajectory of environmental law. I characterize the three views in stereotypical terms because I believe it is useful to separate out and highlight the three very different strains of historical interpretation. Putting aside the question of whether the future direction of any law can be predicted from its past, this section highlights the difficulty of even finding a coherent direction in the past behavior of the law.

In the Current debates over the ESA there are some common misconceptions about the law's history. For instance, one of the most prevalent contemporary criticisms of the ESA is that it overreaches in protecting a wide taxonomic range of species. (100) Typical of this kind of criticism is the 2001 statement from former Rep. James V. Hansen (R-Utah), who served in Congress from 1980 to 2003:

   In 1973, no member of Congress could envision application of
   the [ESA] as it has evolved. The congressional vision of
   "endangered species" was largely limited to eagles, whooping
   cranes, and perhaps, grizzly bears. There was no anticipation
   that the [ESA] would be applied to species of flies, mussels,
   snails, or snakes. (101)

The historical record clearly contradicts this view. Though the 1966 and 1969 predecessors to the ESA were weak, they did authorize the Interior Department to publish lists of imperiled species. (102) By 1973, the list included a snail (Papustyla pulcherrima), salamanders, a toad (Bufo houstonensis), two species of boas, one garter snake (Thamnophis sirtalis tetrataenia), a blunt-nosed leopard lizard (Gambelia silus), a humpback chub (Gila cypha), four species of darters, a pikeminnow (Ptychocheilus lucius), a topminnow (Poeciliopsis occidentalis), bats, a salt marsh harvest mouse (Reithrodontomys raviventris), and the Delmarva Peninsula fox squirrel (Sciurus niger cinereus). (103) The 1969 Endangered Species Conservation Act explicitly defined "fish and wildlife" to include reptiles, amphibians, mollusks, and crustaceans. (104) The 1973 ESA, which added plants to the list of life forms eligible for listing, defined "fish and wildlife" to mean "any number of the animal kingdom, including, without limitation any mammal, fish, bird ... amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate." (105) The only animal not eligible for protection under the definitional section of the 1973 act is an insect determined to be a pest whose protection "would present an overwhelming and overriding risk to man." (106) The 1973 legislative history includes many references to the then-existing list of imperiled species, which numbered 109 in the United States and 300 overseas. (107)

There is some truth to all three of the historical stories told in the following sections. After all, the stories are as much about the values of the story-tellers as they are about the historical facts. Depending on whether one regards it as a good development, the congressional retreat from environmental lawmaking may indicate either a fall from grace or an upward arc.

Also, the three views are not entirely exclusive of each other. For instance, commentators may describe a short-term cyclical variation in environmental programs but nonetheless discern a larger trend. The point of this part of the Article is not to assert that one must subscribe to one view or another before venturing predictions about the future of the ESA. Rather, it is to show that one's view of the past will shape one's prediction for the future.

A. The Fall from Grace

One common view of the history of environmental law is the fall from grace. In this framework, there was a golden era in the early- to mid-1970s when Congress adopted and agencies implemented environmental law with a vigilance unequaled since. The history of environmental law therefore is a sad tale of the steady decline from those halcyon days. Over rime, goals recede, enforcement weakens, exceptions proliferate, and needless complexity grows.

A good example of this view is Michael Blumm's 2001 essay reflecting on the past twenty years of environmental law. (108) Blumm contrasts the congressional retreat of the 1980s and 90s (109) with the "dizzying period of significant environmental legislative enactments" (110) that preceded it. His discussion supports his hypothesis that the 1970s "may come to be called the golden age." (111) Blumm joins a host of other commentators who mourn the loss, or even reversal, of momentum from the 1970s. (112)

B. Onward and Upward 

A second view of the same history interprets the events in a more optimistic light. In this view, history is a story of progressive improvement. Though we may never reach out aspirational goals in environmental law, we get closer and closer every decade. This "Whiggish" view that environmental law is a journey of incremental progress eschews any need for radical reordering, which might sacrifice the gains made in the past. (113) The Whig narratives generally follow the same outline: Dramatic environmental degradation (e.g., flaming rivers, oil-slicked beaches, killer smog) led to governmental action that abated the worst offenders. Diligent but imperfect agency implementation extended the environmental controls to an ever-increasing number of sources. But, over time, significant marginal environmental improvements are more difficult to find. The current tasks involve fine-tuning existing controls. To the extent that population or consumption increases create greater environmental impacts, technological innovation can solve the attendant problems.

Not surprisingly, the historical accounts of the environmental agencies tend to follow this view. After ail, the Whig approach seeks to protect the accumulated wisdom embodied in these institutions. Most accounts of the past thirty years of environmental law that emanate from the Environmental Protection Agency or the Council on Environmental Quality (CEQ) fall in this category. The CEQ not-quite-annual reports on "Environmental Quality" are a chronicle of Whig optimism. (114) Their tone is summed up by the conclusion of the twentieth anniversary report released in 1990:

   [T]he experience of the past two decades ... suggests that
   Americans in 2010 will respond to environmental problems with
   energy, creativity, and a deep-seated sense of responsibility
   for future generations. Americans believe strongly that
   environmental quality is an essential component of their long-term
   health and economic prosperity. They have demonstrated that they
   have the will to protect environmental quality and the capacity to
   act. The lessons of the past 20 years can give all Americans hope
   for the future. (115)

Commentators such as Roderick Nash view the history of environmental law as part of a progressive expansion of the moral universe of rights-holders. (116) Others see improvement in the steady incorporation of the developing science of ecology. (117) A wider range of commentators, the most recently celebrated (and scorned) of whom is Bjorn Lomborg, (118) tell an optimistic tale of physical environmental improvement, particularly correlated with increased affluence and technology. (119)

C. The Roller Coaster

A third view of the history of environmental law is that it is a pendulum or roller coaster. I prefer the roller coaster metaphor because its ups and clowns are irregular. Like legal and political history, roller coasters may change direction with a jolt. On the other hand, the pendulum metaphor perceptively suggests the dynamic of reactive forces continually pulling swings through the middle. (120)

Commentators look at the cycles of environmental history at different scales. Long, low frequency changes may occur with generational transfers of power. (121) Rapid-fire shifts may occur with the two-year cycle of congressional elections. (122) Oscillation in judicial theories, enforcement aggressiveness, administrative innovation, the state's role in cooperative federalism, and congressional committee leadership occurs at intervals somewhere between these two extremes.

Compared with the other two views of history, which at least point in a direction to watch for future changes, the roller coaster offers little guidance for predictions. On average, over the long term, a roller coaster ends up about where it starts.

IV. PRESCRIPTIONS FOR ESA RECOVERY

Though we may despair at predicting what the next thirty years might deliver to the ESA, it is worthwhile to delineate the needs for a successful anti-extinction program. The experience of the past three decades highlights persistent shortcomings that hinder progress toward species recovery. Moreover, any prescription for ESA reform must grapple with shifts in the threats to biodiversity that accompany societal change.

Most parts of the United States have experienced at least 200 years of habitat modification at the hands of intensive human activities. It is unrealistic to expect a single statute to undo those harms in a matter of a few decades. The relatively small number of recovery successes under the ESA counsels reforms for the program. But it also counsels greater patience for the slow process of arresting the most degrading activities and restoring habitat. The trick will be to remain mindful of the long-term goals while establishing realistic benchmarks for measuring success.

My proverbial three wishes for the ESA would provide the statute with what it needs to succeed: funding, technology-based regulation, and preventive biodiversity conservation. The sections that follow describe these three prescriptions for bringing vigor to imperiled species recovery specifically and biodiversity conservation generally.

A. Funding the Program

There is no getting around the money issue. The ESA has never received adequate funding to fulfill its objectives. As with other environmental laws, the agencies charged with implementing the ESA do not have adequate budgets to perform well. There is a pattern of under-funding programs that self-fulfills the prophesy of federal environmental law failure.

The squalid state of ESA funding is a particularly vivid illustration of this insidious dynamic. For years, agency budgets for listing and designation of critical habitat have fallen short of what is needed to meet the mandates of the stature. (123) This tenuous situation prompts lawsuits asking courts to force the Services to respond to particular petitions. In short order, the agencies expend their entire budgets responding to outside litigation priorities rather than their own. (124) Some critics have used this frustrating situation to argue for limitations on judicial review. (125) But the real solution is to give the Services the resources they need to do their jobs in identifying and listing species on the brink of extinction, designating critical habitat, and preparing adequate recovery plans. There is more than a little hypocrisy in calling for the federal government to act only on the basis of "sound" or "peer reviewed" science, (126) but not supporting the significant budget increases necessary to carry out high quality research.

Even putting aside the funding required to list species, designate habitat, and conduct consultation, the costs of species recovery alone justify a bleak view of funding. A 1990 Interior Department report estimated the total cost for recovery of listed species to be $4.6 billion. (127) The number of listed species has doubled since that time.

Land acquisition has always been an important part of federal species recovery efforts. It seems quaint now that the Endangered Species Preservation Act of 1966 (128) anticipated that we could recover endangered species solely by purchasing habitat for the national wildlife refuge system. The 1973 legislative history, though it added a dollop of consultation and prohibition to the programmatic mix, shows that Congress continued to believe that the Land and Water Conservation Fund (LWCF) would provide needed monies for habitat reserves. The past thirty years have proven that belief to be unfounded.

The failure of Congress to appropriate fully LWCF receipts is a broken promise (129) from the 1964 law, which earmarked receipts from motor boat fuels taxes and other sources. LWCF dollars now come primarily from leasing the outer continental shelf for oil and gas development. (130) I do not wish to underestimate the good that the LWCF has done with its slimmed down appropriations. William H. Rodgers, Jr. is on from ground in nominating the LCWF Act for the most significant U.S. environmental law. (131) At the time he wrote, in 1994, the fund had supplied $6.8 billion primarily for acquisition of land. (132) But the unappropriated accumulation of LWCF monies totals some $13 billion. (133)

Congress described the LWCF land acquisition objective in terms of outdoor recreation, (134) but subsequent legislation, beginning with the 1966 Endangered Species Preservation Act and continuing through the 1973 ESA, expanded the uses of the LWCF to include habitat protection. Habitat protection needs to be the top priority for any revision of the ESA. Habitat degradation and destruction contributes to the risk of extinction for 85% of imperiled species. (135)

The habitat needs of many listed species are dauntingly large. For instance, some birds breed exclusively in tracts of habitat that are many times larger than the size of their territory. (136) Salmon in the Columbia River basin travel from the sea to breed in tributaries that fan out over 260,000 square miles. (137) Migratory birds and salmon also illustrate how some species depend on different types of habitat (e.g., breeding, feeding, resting) in different places at different times.

The relationship between federal funding and habitat protection goes beyond acquisition. Because securing habitat for listed species on private land creates the most intense conflicts under the ESA, various forms of subsidies to encourage and compensate landowners for better management will be required for long-term recovery of a substantial number of species. Short of outright purchases of land, an essential part of the ESA prescription should be money to support better private habitat management.

Certainly, some areas contain such sensitive habitat that acquisition is the most appropriate federal response for species protection. However, the vast majority of habitat should and will remain in private ownership where economic and residential activity can coexist with the needs of wildlife and plants. The key issue on these lands is appropriate management. Here, federal funding will play an important role.

Some money for habitat management currently goes to states under the ESA section 6 cooperative agreements. However, the scale of federal payments to address the extinction problem must increase dramatically, probably to levels equivalent to agricultural subsidies. The federal government subsidizes farming to the tune of some $20 billion annually. (138) J.B. Ruhl has sensibly suggested shifting the current agricultural price supports to a "green" subsidy program that would tie payments to environmental performance. (139)

Incentives, essentially payment for ecological services rendered, will be needed to supplement any foreseeable regulation under the ESA. No great conceptual chasms need be leaped to fill this prescription. All it takes is money. The Natural Resources Conservation Service (NRCS) already has partnerships with local conservation districts to serve just about every county of the nation and can work with landowners to improve habitat management. (140) The NRCS currently does this in a limited way through the Wetlands Reserve Program (WRP), in which it pays landowners to enhance wetlands on marginal agricultural lands, (141) The NRCS also offers technical assistance and cost-share for wetland restoration. (142) This is exactly the kind of program we need on a larger scale for endangered species habitat restoration.

After habitat restoration, the next most severe anthropocentric threat to listed species is the introduction of non-native species and the spread of diseases carried by them. Programs to eradicate invasive species could be funded through a cost-share program very similar to the WRP. The federal government should offer direct financial rewards for landowners wining to produce a non-native species control plan.

Investing federal dollars in species recovery would likely yield other benefits. For instance, the same management practices that maintain and restore salmon spawning watersheds would also help states achieve nonpoint source controls for water pollution. Our legal tools to control nonpoint source pollution have been inadequate for many of the same reasons that the tools to accomplish recovery under the ESA have. In this respect, the cross-cutting nature of endangered species problems works both ways. Not only are endangered species indicators of broader ecological problems, but ESA recovery solutions will likely repair damage to the health of land, water, and (to a lesser extent) air.

Of course, advocates for every government program complain about inadequate budgets. In addition, the resumption of federal deficit spending bodes ill for any short-term relief from budget austerity. (143) Yet the unhappy truth is that recovery is expensive. Even if we retain the stricter regulatory standards established in the Act, which employ sticks rather than financial carrots to protect habitat, federal spending for conservation biology and ESA implementation will have to rise as the magnitude of the extinction problem continues to grow.

B. Technology-Based Limitations to Protect Habitat

The federal government cannot and should not pay for everything that abates harm to imperiled species. Some activities should be minimized, controlled, or even prohibited, through regulation. One of the chief weaknesses of the ESA's regulatory framework under both section 7 and section 9 is that it relies on determinations of the effects of specific activities. Section 7 requires the Services to determine whether the proposed federal action jeopardizes the continued existence of the species or adversely modifies critical habitat. (144) Section 9 requires the Services to determine, most often, whether a take has occurred through significant habitat modification or degradation that actually injures wildlife by significantly impairing essential behavior patterns. (145)

Such determinations are generally beyond the ability of the Services, or anyone for that matter, to make without reference to extensive information that does not typically exist and that would be very expensive to produce. (146) One response to this shortcoming of the existing ESA is to fund the scientific research necessary to make more credible determinations, as this Article suggests in the previous section. Another important response, however, is evident from the approach of pollution control law: Implement technology-based limitations.

As Oliver Houck has observed, the clear trend in the development of pollution abatement law has been away from controls and standards that place unreasonable information demands on agencies. (147) Over time, the most effective regulations are the ones that establish a uniform standard on all activities of a similar type. Although there may be some modification of the uniform standard for special, site-specific circumstances, the baseline regulation calls for everyone to do what they can to abate as much pollution as possible before receiving the governmental green light (generally, a permit). Controlling degrading activities through uniform standards of behavior also reveals the moral dimension of environmental law. (148)

One important reason why so many ESA disputes revolve around logging, agriculture (including ranching), and residential or commercial land development (the sectors I will call the "Big Three") is that these are the most important non-service areas of the economy that generally escape regulation under the pollution control laws. Activities subject to the pollution control statutes are relatively uncontroversial from an ESA perspective because they are already regulated under those other environmental laws. Where pollution control regulation does the heavy lifting, often what remains necessary for the ESA program is slight. But, for the Big Three, exemptions and exclusions have left the ESA with a tremendous challenge to control habitat degradation.

True, the CWA is making tentative, halting baby steps toward controlling nonpoint source pollution from the Big Three sectors. (149) But it may be the fate of the ESA to carry the banner at the vanguard of federal regulation of these industries. If the ESA leads the way, this will likely be the most significant contribution that the ESA has ever made to environmental law.

Certainly, there are intimidating political hurdles to regulating the Big Three sectors, but those hurdles are beyond the scope of this Article. I am examining what the ESA needs, not what the ESA is likely to get. More important to this discussion are feasibility problems in adapting technology-based limitations to the ESA.

In part, the lack of federal environmental regulation of the Big Three results from the traditional deference to states on issues of land use. It is true that the Big Three are land intensive. But there is no reason to deny the federal interest in these sectors of the economy while allowing federal law to control other sectors that similarly contribute to national markets in goods.

A stronger justification for the current exemption for the Big Three in environmental law is that they involve such a diversity of site-specific activities that they cannot be sub-categorized adequately to tailor technology-based limitations. (150) Although there is some truth to this rationale, there are nonetheless common, distinguishable subcategories within each of the Big Three (e.g., large-scale crop irrigation or concentrated animal feeding operations (CAFOs)) that are susceptible to generalizations about how to minimize effects on biological diversity. (151)

The term "technology-based" limitations comes from the pollution control field of environmental law. A better term for the ESA might be "behavior-based" or "activity-based" limitations. Unlike the pollution control area, where chemical abatement often requires quite technologically sophisticated machinery, (152) many of the analogous approaches for species recovery are decidedly ordinary, including the following: riparian buffer zones, slash management, hedgerows, tillage limitations, stormwater abatement, and residential clustering. Many of these limitations are well documented in the literature concerning voluntary "best management practices" for nonpoint source water pollution control. (153)

To a limited degree, the current incidental take permitting program tan accommodate these technology-based standards. But that program lacks many of the attributes that make the pollution control permits so effective. The incidental take program today fails to require progress toward the recovery goal of the ESA, it lacks nationally uniform standards, it does not provide assured avenues for public participation, and it neglects the potential for state implementation. (154) A revitalized ESA would need to incorporate all of these attributes.

Several pollution control programs employ the promising tool of general permits to cover a large number of relatively low-impact, similar activities that, when aggregated, could diminish environmental quality if not subject to some basic limitations. (155) This relieves each individual activity from the burden of applying for a site-specific permit unless special circumstances create the need for closer scrutiny. (156) One leading casebook describes the general permit approach to controlling stormwater discharges through best management practices as "a model of regulatory efficiency." (157) Like incidental take permits, general permits for stormwater discharge require permitees to develop plans of abatement. (158)

For threatened species, I have argued that ESA section 4(d) provides authority for the Services to craft a cooperative federal permit program that can achieve what the pollution control programs have done. (159) Extending such a scheme to all listed species requires statutory revision. But the framework for controlling municipal, residential, commercial and industrial (MRCI) development activities under the 4(d) rule promulgated in 2000 for a group of anadromous fish in the Pacific Northwest provides a rough outline for how ESA permitting might operate for land-disturbing activities. (160) The federal government, in the rule and related guidance, sets out standards for state and municipal land-use control programs to meet in order to receive certification under the rule. (161) If a land-use controlling jurisdiction can show to the satisfaction of the federal overseer that its program (including plans, local permits, and public restoration projects) meets the national standards, then it receives certification. Private land-disturbing activities operating and regulated under the certified program are insulated from take liability. So is the local jurisdiction for those activities covered by the certified program. Local jurisdictions have incentives to develop programs in order to retain control over land use and to gain eligibility to receive federal funds. Therefore, the effectiveness of this particular tool depends both on credible federal enforcement of sanctions and on availability of significant federal funds.

Perhaps most importantly, employing cooperative federalism can marry national behavior-based limitations to protect biodiversity with the wide variety of local area-wide plans. In addition to delegating enforcement to states, counties, and municipalities, this approach also encourages land-use planning. If done on a large enough scale, and early enough, area-wide plans can promote trades in habitat quality. This accommodates desperately needed flexibility for land-use controls. It also leads to preventive conservation that slows the pace of listing under the ESA.

C. Preventive Health Care for Biodiversity

Though some endangered species are perched so close to the edge of extinction that they can survive no more habitat modification or other harm, much of our biodiversity is not in quite so dire a condition. The ESA currently demands that we halt development because we do not take reasonable measures until species are at a relatively high risk of extinction. (162) My final broad prescription for the ESA of the future is to establish less draconian controls for biodiversity management that prevent species from declining to the point at which there is little flexibility for recovery. If we had a set of legal trip switches to slow unsustainable practices before they reached the point of serious collapse, we would avoid many of the train wrecks that have unfairly tarnished the image of the ESA. As a program of last resort, we ought to rely less on the ESA and more on new, preventive biodiversity health initiatives to address ecosystem integrity.

One approach to providing flexible preventive health care for biodiversity, as noted in the previous Section, is area-wide planning. The larger the planning area, the more flexible are the trade-offs between, for example, habitat on one side of a watershed and the other. Similarly, early planning, before every last scrap of habitat is needed for a species to cling to existence, also enables flexible trades. Plans allowing development in some places and not in others can achieve fairness through relatively simple trades. (163) Though candidate conservation agreements have begun to prompt some early species protection efforts, they fall far short of the mark for widespread, comprehensive planning.

Effective planning requires adequate funding, of course. But, it also demands information. The ESA currently does a poor job of generating the kind of information that people need to make good choices about activities that might adversely affect biodiversity. The failure of Bruce Babbitt's revival of the Progressive Era's Biological Survey denied the nation a desperately needed source of comprehensive information about our natural wealth. (164) Without information about the location, vigor, trends, and needs of species, we have little hope of avoiding an ever-expanding endangered species list. We also have little basis for establishing trading schemes that ensure progress toward recovery.

Even for listed species, the ESA has not made the grade in prompting agencies to meet their conservation duty to take affirmative steps to promote recovery. (165) One reason is that, by the time a species is listed, recovery is very difficult because the populations are so low and vulnerable, (166) Another key reason is the shortage of funds and regulatory tools described in the previous two Sections. But Ml of these reasons are related to a dim public and governmental awareness of the status of biodiversity. Even what little information we do possess (167) is not widely understood.

My greatest hope for the future of the ESA is that it will promote better understanding of the importance of species recovery both as a moral and as an economic issue. Then, we will see its measures of success reflected in agency strategic plans under the Government Performance and Results Act, (168) in municipal land-use and development ordinances, and in congressional budgetary priorities.

V. CONCLUSION

For such a little statute, the ESA gets a lot of attention. This is, in part, because of its dramatic stewardship goal: We committed the law to intervene to stop extinctions. Thus, the ESA must step into the political thickets, such as land-use control, that other environmental laws evade. While the ESA is our special tool of last resort to repair long-standing, unsustainable situations, it also mirrors larger, controversial shifts in environmental law and policy. It is folly to think we can cure the ills of the ESA in isolation from the problems that beset the field of environmental lave.

The ESA debates reflect the ongoing tension of the Act's dual citizenship. It has allegiances both to regulatory pollution control law and proprietary resource management law. The tools from both these areas sometimes mix uneasily. But the situation does make the ESA suitable for borrowing tools, such as technology- (or, activity-) based limitations, from pollution control law to achieve biodiversity protection.

This Article imagines what it would really take to meet the objectives of the ESA. In order to plot a strategic direction for reform, we need to think over a longer term than just the next round of foreseeable regulatory or statutory revisions. Supporters of the ESA have been fighting to stave off hostile interpretations and amendments for so long that their energy for visionary advocacy has waned. Environmentalists may need to abandon some defensive battles in order to win the war for recovery by articulating a bold affirmative agenda. Substantial new funding, regulation of the Big Three, and flexible conservation plans to prevent listings must be a part of this visionary strategy.

(1) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(2) Indeed, for the purposes of this broad-brush analysis, we might as well talk about the 37th anniversary of the predecessor to the modern ESA, the now-repealed Endangered Species Preservation Act of 1966, which was the first comprehensive attempt to deal with the extinction problem. Pub. L. No. 89-669, 80 Stat. 926, repealed by Pub. L. No. 93-205, [section] 14, 87 Stat. 884, 903 (1973). The 1966 law was followed by the Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275, repealed by Pub. L. No. 93-205, [section] 14, 87 Stat. 884, 903 (1973).

(3) See Joseph L. Sax, Environmental Law at the Turn of the Century: A Reportorial Fragment of Contemporary History; 88 CAL. L. REV. 2375, 2395 (2000) (examining the Platte River water dispute and the ESA's role as a catalyst for bringing all parties to the negotiation).

(4) Holly Doremus & A. Dan Tarlock, Fish, Farms, and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279, 306-16 (2003).

(5) 16 U.S.C. [section] 1536(a)(2) (2000).

(6) See discussion infra Section IV.B.

(7) Pub. L. No. 89-669, 80 Stat. 926.

(8) The Lacey Act of 1900, Ch. 553, 31 Stat. 187 (1900) (codified as amended in scattered sections of 16 U.S.C. and 18 U.S.C.).

(9) THOMAS A. LUND, AMERICAN WILDLIFE LAW 87 (1980).

(10) 16 U.S.C. [section] 1536 (2000).

(11) Id. [section] 1538.

(12) Id. [section] 1534.

(13) Ch. 55, 48 Stat. 401 (1934) (codified as amended at 16 U.S.C. [subsection] 661-667).

(14) Compare 16 U.S.C. [section] 662 (2000), with 16 U.S.C. [section] 1536 (2000). The consultation process of the ESA is much more detailed than the process in the Fish and Wildlife Coordination Act.

(15) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000). NEPA mandates an interdisciplinary analysis of proposed federal actions. This requires an action agency both to consult with relevant state and federal natural resources agencies about anticipated effects and to engage biological scientists (either in-house or through private consultants) to write an evaluation.

(16) 16 U.S.C. [section] 662(a) (2000).

(17) 16 U.S.C. [section] 470f (2000).

(18) 42 U.S.C. [section] 4332(2)(C) (2000).

(19) See, e.g., Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 965 (9th Cit. 2003) (holding FWS's biological opinion adequately examined future impacts of the proposed activity); Cascadia Wildlands Project v. United States Fish & Wildlife Serv., 219 F. Supp. 2d 1142, 1150 (D. Or. 2002) (granting a preliminary injunction because serious questions were raised concerning the adequacy of FWS's biological opinion); S.F. Baykeeper v. United States Army Corps of Engr's, 219 F. Supp. 2d 1001, 1021 (N.D. Cal. 2002) (holding the scope of FWS's biological opinion was adequate); Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 126 (D.D.C. 2001) (finding that FWS's biological opinion did not examine cumulative effects sufficiently).

(20) U.S. GENERAL ACCOUNTING OFFICE, GAO-02-581, ENDANGERED SPECIES PROGRAM: INFORMATION ON HOW FUNDS ARE ALLOCATED AND WHAT ACTIVITIES ARE EMPHASIZED 14-18 (2002) (reporting that FWS field staff spent 42% of its time on consultation, compared to the next most time-consuming activity, recovery, at 28% of its time), available at http://www.gao.gov/new.items/d02581.pdf.

(21) 16 U.S.C. [section] 1538 (2000).

(22) 16 U.S.C. [subsection] 703-712 (2000).

(23) 16 U.S.C. [section] 668ee(15) (2000).

(24) 16 U.S.C. [section] 703 (2000).

(25) Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. [subsection] 668-668d (2000).

(26) Marine Mammal Protection Act of 1972, 16 U.S.C. [subsection] 1361-1421h (2000).

(27) 16 U.S.C. [section] 1532(19) (2000).

(28) 50 C.F.R. [section] 17.3 (2004); Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (1995).

(29) Robert L. Fischman, Law--Biological Conservation, in ENCYCLOPEDIA OF WORLD ENVIRONMENTAL HISTORY (S. Krech III et al. eds., 2004).

(30) Executive Order of March 14, 1903. See U.S. FISH AND WILDLIFE SERVICE, PELICAN ISLAND NATIONAL WILDLIFE REFUGE: AMERICA'S FIRST, available at http://southeast.fws.gov/pubs/plcgen.pdf (last visited Apr. 11, 2004).

(31) ROBERT L. FISCHMAN, THE NATIONAL WILDLIFE REFUGES: COORDINATING A CONSERVATION SYSTEM THROUGH LAW 35 (2003).

(32) Migratory Bird Conservation Act of 1929, 16 U.S.C. [subsection] 715-715r (2000).

(33) Migratory Bird Hunting Stamp Act of 1934, 16 U.S.C. [section] 718 (2000).

(34) FISCHMAN, supra note 31, at 38.

(35) Ch. 1036, 70 Stat. 1119 (1956) (codified as amended at 16 U.S.C. [subsection] 742a-742j-2).

(36) 16 U.S.C. [subsection] 46014 to 4601-11 (2000).

(37) A more detailed description of these and other, more narrowly focused authorities can be found at Robert L. Fischman, The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation, 29 ECOLOGY L.Q. 457, 473-76 (2002).

(38) Pub. L. No. 89-669, 80 Stat. 926 (1966).

(39) On the other hand, threatened and endangered species habitat protection remains a key function of the refuge system. Over 10% of the national wildlife refuges were acquired for listed species protection. Overall, the refuge system harbors 180 animal and 78 plant species listed under the ESA. FISCHMAN, supra note 31, at 29.

(40) 515 U.S. 687, 728-29 (1995).

(41) S. REP. NO. 93-307, at 4 (1973).

(42) RICHARD N.L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 227 (1999).

(43) Borrowing Fred Cheever's wonderful metaphor, the ESA was "hatched" in the nest of modern pollution control law. Federico Cheever and Michael Balster, The Take Prohibition in Section 9 of the Endangered Species Act: Contradictions, Ugly Ducklings, and Conservation of Species 34 ENVTL. L. 363, 385 (2004).

(44) 42 U.S.C. [subsection] 7401-7671q (2000).

(45) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(46) See 119 CONG. REC. 42, 915-16 (Dec. 20, 1973) for the roll-call vote.

(47) The standard reference for the legislative history of the 1973 ESA is SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, LEGISLATIVE HISTORY OF THE ENDANGERED SPECIES ACT OF 1973 (1982).

(48) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(49) Id. [section] 702.

(50) ANDREWS, supra note 42, at 240-41; see generally Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667 (1975).

(51) 16 U.S.C. [section] 1540(g) (2000); MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 265 (3d ed. 1997).

(52) See ANDREWS, supra note 42, at 240-41 (discussing the impact of citizen suit provisions on the regulatory process). Professor Joseph L. Sax advocated this approach in his 1970 path-breaking book, Defending the Environment.

(53) Zygmunt J.B. Plater, From the Beginning, A Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law, 27 LOY. L.A. L. REV. 981, 982 (1994) (emphasis added).

(54) William H. Rodgers, Jr., The Seven Statutory Wonders of the US Environmental Lam: Origins and Morphology, 27 LOY. L.A. L. REV. 1009, 1019-21(1994) (arguing citizen suits help sustain enthusiasm for the law at the level of monitoring and enforcement).

(55) See, e.g., Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 158, 1509 (9th Cir. 1994) (holding there was not degradation that significantly impaired essential behavioral patterns where habitat of an endangered species was affected by a grain spill); Am. Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st Cir. 1993) (finding no evidence of actual harm to bald eagles as a result of possible ingestion of lead-contaminated deer meat); Defenders of Wildlife v. Administrator, Envtl. Prot. Agency, 882 F.2d 1294, 1301 (8th Cir. 1989) (finding the EPA's registration of pesticides containing strychnine was a take where endangered species had eaten the pesticide and died); Palila v. Haw. Dep't of Land & Natural Res., 852 F.2d 1106, 1108 (9th Cir. 1988) (holding that habitat destruction that could drive an endangered species into extinction falls within the Secretary's interpretation of harm); Palila v. Haw. Dep't of Land & Natural Res., 639 F.2d 495, 498 (9th Cit. 1981) (finding that grazing sheep and goats in the critical habitat of an endangered species was a taking only where the complete eradication of the livestock would prevent harm to the endangered species).

(56) U.S. GENERAL ACCOUNTING OFFICE, supra note 20, at 21-23.

(57) See, e.g., Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1056-57 (9th Cir. 1994) (finding agency duty to consult on a long range management plan); Conner v. Burford, 848 F.2d 1441, 1462 (9th Cir. 1988) (enjoining proposed off leasing due to inadequacy of biological opinion); Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cit. 1987) (enjoining proposed action due to agency's failure to reinitiate consultation upon receipt of new information front expert peer agency); Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1057 (1st Cir. 1982) (remanding proposed permit due to inadequacy of consultation); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 173-74 (1978) (finding agency duty to avoid jeopardy).

(58) 33 U.S.C. [section] 1342 (2000); see also 42 U.S.C. [section] 7661a (2000) (state permitting of emission sources under the Clean Air Act); 42 U.S.C. [subsection] 6941-6949 (2000) (state permitting for solid waste disposal under the Resource Conservation and Recovery Act).

(59) 42 U.S.C. [subsection] 7410, 7502 (2000); see also 33 U.S.C. [section] 1288(b) (2000) (outlining area-wide waste treatment management plans); Id. [section] 1329(b) (establishing state management program to control nonpoint source water pollution).

(60) For descriptions of how cooperative federalism works in pollution control law, see ENVIRONMENTAL LAW INSTITUTE, LAW OF ENVIRONMENTAL PROTECTION [section] 3.1 (Sheldon M. Novick ed., 2003); ENVIRONMENTAL LAW INSTITUTE, SUSTAINABLE ENVIRONMENTAL LAW [section] 3.2(A) (Celia Campbell-Mohn et al. eds., 1993); David L. Markell, The Role of Deterrence-Based Enforcement in a "Reinvented" State/Federal Relationship: The Divide Between Theory and Reality, 24 HARV. ENVTL. L. REV. 1, 30-43 (2000); Robert V. Percival, Environmental Federalism: Historical Room & Contemporary Models, 54 MD. L. REV. 1141, 1174-78 (1995).

(61) In the case of the state implementation plan program of the Clean Air Act, states may lose federal highway grants if they fail to fulfill their role in the cooperative framework. 42 U.S.C. [section] 7509(b)(1) (2000).

(62) New York v. United States, 505 U.S. 144, 161 (1992) (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n 452 U.S. 264, 288 (1981)). Though there is little doubt that the national standards established by environmental laws prevent states from competing with each other to lower regulation, there is some debate about whether such a race would occur in the absence of a federal floor. See generally Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997); Kirsten Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"? 48 HASTINGS L.J. 271 (1997); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom "Rationale for Federal Environmental Regulation, 67 N.Y.U.L. REV. 1210 (1992).

(63) 16 U.S.C. [section] 1535(a) (2000).

(64) Id. [section] 1535(c), (f).

(65) Compare id. [subsection] 1533(d), 1535(g)(2)(A), with id. [section] 1535(f).

(66) Swan View Coalition v. Turner, 824 F. Supp. 923, 939 (D. Mont. 1992); United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1133 (E.D. Cal. 1992); BEAN & ROWLAND, supra note 51, at 269-70; Christine Golightly, Student Article, The Oregon Coastal Salmon Restoration Initiative: A Flawed Attempt to Avoid ESA Listing, 7 N.Y.U. ENVTL. L.J. 398, 449-51 (1999).

(67) 16 U.S.C. [section] 1535(c) (2000).

(68) Id. [section] 1535(d)(2).

(69) Dep't of Interior and Related Agencies Appropriation Act of 1991, Pub. L. No. 101-512, 104 Stat. 1915, 1918 (1991).

(70) Dep't of Interior and Related Agencies Appropriation Act of 2001, Pub. L. No. 106-291, 114 Star. 922, 926-27 (2001).

(71) Dep't of Interior and Related Agencies Appropriation Act of 2003, Pub. L. No. 108-7, 117 Stat. 11, 220, 222 (2003).

(72) 50 C.F.R. [subsection] 17.21(c)(5), 17.31(b) (2004).

(73) BEAN & ROWLAND, supra note 51, at 268-69.

(74) See SHANNON PETERSEN, ACTING FOR ENDANGERED SPECIES: THE STATUTORY ARK 28 (2002) (discussing congressional debates about preemption of state authority).

(75) Professor Holly Doremus documents these discussions well in Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,434, 10,441 (2000).

(76) S. REP. No. 93-307, at 4-5 (1973).

(77) H.R. CONF. REP. NO. 93-740, at 25-26 (1973).

(78) Robert L. Fischman & Jaelith Hall-Rivera, A Lesson for Conservation from Pollution Control Law: Cooperative Federalism for Recovery Under the Endangered Species Act, 27 COLUM. J. ENVTL. L. 45, 168-72 (2002).

(79) 33 U.S.C. [section] 1311(a) (2000).

(80) 16 U.S.C. [section] 1539(a) (2000).

(81) Id. [section] 1532(19).

(82) Id. [section] 1539(a)(2)(A).

(83) H.R. CONF. REP. NO. 97-835, at 30-32 (1982)

(84) Id.; see also Albert C. Lin, Participants' Experiences with Habitat Conservation Plans and Suggestions for Streamlining the Process, 23 ECOLOGY L.Q. 369, 374-76 (1996). The court upheld the San Bruno Mountain permit and HCP in Friends of Endangered Species v. Jantzen, 760 F.2d 976, 988-89 (9th Cir. 1985).

(85) 16 U.S.C. [section] 1536 (2000).

(86) Id. [section] 1536(b)(4).

(87) Id. [section] 1536(b)(4)(C)(ii), (iv).

(88) Id.

(89) U.S. FISH & WILDLIFE SERVICE AND NATIONAL MARINE FISHERIES SERVICE, HABITAT CONSERVATION PLANNING HANDBOOK i (1996).

(90) U.S. FISH & WILDLIFE SERVICE, ENDANGERED SPECIES HABITAT CONSERVATION PLANNING, at http://endangered.fws.gov/hcp/index.html (last visited Apr. 11, 2004).

(91) 16 U.S.C. [section] 1531(b) (2000).

(92) 33 U.S.C. [section] 1311(b)(2)(A)(i) (2000) (stating the goals of the Clean Water Act).

(93) Id. [subsection] 1251(a), 1313(c) (providing for periodic review of water quality). One must be careful to avoid comparing the ESA program, in practice, to the CWA program, in design. In practice, the water program has struggled to promote incremental improvements over time. See ROBERT W. ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER (1993) (using real world information to perform a comprehensive analysis of the successes and failures of the Clean Water Act on a national scale); OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY AND IMPLEMENTATION (1999) (elaborating on the mechanism for implementing the TMDL program to control water pollution from nonpoint sources); Oliver A. Houck, Of BATs, Birds, and B-A-T" The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403, 425-26 (1994) (describing problems encountered due to nonpoint source pollution from agriculture and storm water runoff). But the CWA program is nonetheless more highly evolved than the ESA program in maintaining incentives for and achieving some continual progress toward statutory goals.

(94) U.S. FISH & WILDLIFE SERVICE AND NATIONAL MARINE FISHERIES SERVICE, supra note 89, at 3-20.

(95) Fischman & Hall-Rivera, supra note 78, at 168.

(96) For a thorough review of these regulatory reform ideas, see The National Symposium on Second Generation Environmental Policy and the Law, 29 CAP. U. L. REV. 1 (2001).

(97) For a description of these programs, see Peter Aengst et al., Introduction to Habitat Conservation Planning, 14 ENDANGERED SPECIES UPDATE Nos. 7 & 8, at 9 (1997), available at http://www.umich.edu/~esupdate/library/97.07-08/hcp.html; Patrick Parenteau, Rearranging the Deck Chairs: Endangered Species Act Reforms in an Era of Mass Extinction, 22 WM. & MARY ENVTL. L. & POL'Y REV. 227, 285 (1998) (describing the Interior Department's attempts to improve administration of the ESA through cooperation, negotiation, and voluntary agreements); J.B. Ruhl, Who Needs Congress? An Agenda for Administrative Reform of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 367, 382-87 (1998) (detailing various ecosystem approach policies in administrative reform); Karin P. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heel of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 279, 337-40 (1998) (reviewing the history and effectiveness of habitat conservation plans).

(98) For a description of these programs, see Dennis D. Hirsch, The National Symposium on Second Generation Policy and the New Economy, 29 CAP. U. L. REV. 1, 9 (2001).

(99) This very journal published an article upon the passage of the ESA that predicted the take prohibition would not be interpreted so broadly as to apply to indirect harms caused by habitat degradation. Rudy Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 ENVTL. L. 29 (1974).

(100) See, e.g., Hanna Rosin, Fern Trampling, NEW REPUBLIC, July 3, 1995, at 12 (quoting Rep. Don Young (D-Alaska), who voted for the ESA in 1973, as stating, "We had envisioned trying to protect, you know, pigeons and things like that.... We never thought about mussels and ferns and flowers and an these ... subspecies of squirrels and birds."); Hansen Files Landmark Bill to Restore Original Intent of Endangered Species Act, SIERRA TIMES, Nov. 13, 2002, available at http://www.sierratimes.com/02/11/14/arst111402.htm (quoting Rep. James V. Hansen (R-Utah), "Congress crafted this law nearly 40 years ago to protect large species like the grizzly, wolf and bald eagle from extinction."). Both Representatives Young and Hansen have served as chairmen of the House Resources Committee.

(101) James V. Hansen, Endangered Economies: An Alternative Approach to Compliance with the Endangered Species Act Is Restoring Endangered Fish in the Colorado and San Juan Rivers, 16 F. APPLIED RES. & PUB. POL'Y 45, 46 (2001).

(102) Pub. L. No. 89-669, [section] 1(c), 80 Stat. 926, 926 (1966); Pub. L. No. 91-135, [section] 3(a), 82 Stat. 275 (1969).

(103) 35 Fed. Reg. 16, 047-48 (Oct. 13, 1970) (Appendix D listing endangered fish and wildlife); U.S. FISH & WILDLIFE SERVICE, ENVIRONMENTAL CONSERVATION ONLINE SYSTEM, at http://ecos.fws.gov/tess_public/TESSWebpage (last visited Apr. 11, 2004) (database of threatened and endangered species by listing date); see BEAN & ROWLAND, supra note 51, at 199 ("It was evident by 1973 that the problem of endangerment was not limited to vertebrates, mollusks, and crustaceans, but affected virtually all phyla of animals and plants.").

(104) Pub. L. No. 91-135, [section] 7(a), 83 Stat. 275, 279-81 (1969).

(105) Pub. L. No. 93-205, [section] 3(5), 87 Stat. 884, 885 (1973) (codified at 16 U.S.C. [section] 1532(8) (2000)).

(106) Id. [section] 3(4) (codified at 16 U.S.C. [section] 1532(6) (2000)).

(107) S. REP. No. 93-307, at 2 (1973).

(108) Michael C. Blumm, Twenty Years of Environmental Law: Role Reversals Between Congress and the Executive, Judicial Activism Undermining the Environment, and the Proliferation of Environmental (and Anti-Environmental) Groups, 20 VA. ENVTL. L.J. 5 (2001).

(109) Id. at 6.

(110) Id. at 5.

(111) Id. at 15.

(112) See, e.g., MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY 8 (1995) (noting that environmental law and policy entered a "relatively fruitless" phase after 1981); Richard J. Lazarus, The Greening of America and the Graying of the United States Environmental Law: Reflections on Environmental Law's First Three Decades in the Unites States, 20 VA. ENVTL. L.J. 75, 105 (2001) (concluding that the "greatest challenge" to current environmental law is the need to recapture the original passion and purpose of the 1970s); Kal Raustiala, The Political Implications of the Enforcement Provisions of the NAFTA Environmental Side Agreement: The CEC as a Model for Future Accords, 25 ENVTL. L. 31, 44 (1995) (referring to the "golden age of environmental regulation").

(113) The Whig philosophy originates with the writings of Edmund Burke. Suzanna Sherry, Judges of Character, 38 WAKE FOREST L. REV. 793, 794 (2003). The Whig interpretation of history is "the tendency in many historians ... to emphasise certain principles of progress in the past and to produce a story which is the ratification if not the glorification of the present." HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY v (W.W. Norton & Co., Inc. 1965) (1931). See also CHARLES VAN DOREN, THE IDEA OF PROGRESS (1967).

(114) The CEQ reports are required by NEPA. 42 U.S.C. [section] 4344(2) (2000) (requiring that CEQ "gather timely and authoritative information concerning the conditions and trends in the quality of the environment"); id. [section] 4344(7) (requiring that CEQ "report at least once each year to the President on the state and condition of the environment").

(115) COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: THE TWENTIETH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 13 (1989).

(116) RODERICK FRAZIER NASH, THE RIGHTS OF NATURE: A HISTORY OF ENVIRONMENTAL ETHICS 4-12 (1989).

(117) RICHARD O. BROOKS ET AL., LAW AND ECOLOGY: THE RISE OF THE ECOSYSTEM REGIME 2-36, 397 (2002).

(118) See generally Symposium on Bjorn Lomborg's The Skeptical Environmentalist, 53 CASE W. RES. L. REV. 249 (2002).

(119) BJORN LOMBORG, THE SKEPTICAL ENVIRONMENTALIST: MEASURING THE REAL STATE OF THE WORLD 2001; GREGG EASTERBROOK, A MOMENT ON EARTH: THE COMING AGE OF ENVIRONMENTAL OPTIMISM (1995); THE STATE OF HUMANITY (Julian L. Simon ed., 1994); THE RESOURCEFUL EARTH (Julian L. Simon & Herman Kahn eds., 1984). Most of these commentaries, however, give little credit to environmental law as having anything to do with environmental improvement. On technological optimism, see James E. Krier & Clayton P. Gillette, The Un-Easy Case for Technological Optimism, 84 MICH. L. REV. 405 (1985).

(120) William D. Ruckelshaus, Stopping the Pendulum, Speech Delivered at the Environmental Law Institute's Annual Awards Dinner (Oct. 18, 1995) ("The anti-environmental push of the nineties is prompted by the pro-environmental excesses of the late eighties, which was prompted by the anti-environmental excesses of the early eighties, which was prompted by the pro-environmental excesses of the seventies...."), available at http://csis.org/e4e/pendulum.html.

(121) J. Wimam Futrell, The History of Environmental Law, in SUSTAINABLE ENVIRONMENTAL LAW: INTEGRATING NATURAL RESOURCE AND POLLUTION ABATEMENT LAW FROM RESOURCES TO RECOVERY 6-8 (Celia Campbell-Mohn et al. eds., 1993).

(122) M. Ner Browne & Nancy K. Kubasek, A Communitarian Green Space Between Market and Political Rhetoric About Environmental Law, 37 AM. BUS. L.J. 127, 127 (1999).

(123) See, e.g., Sean O'Connor, Comment, The Rio Grande Silvery Minnow and the Endangered Species Act, 73 U. COLO. L. REV. 673, 726 (2002) (discussing budget shortfalls under several administrations).

(124) See, e.g., Natalie M. Henry, FWS Gains Extra Year to Finish Largest Ever Critical Habitat Designation, LAND LETTER, Oct. 16, 2003, item 9 (reporting that the critical habitat designation for bull trout (Salvelinus confluentus) mandated by a court order will consume more than 25% of the Service's 2004 critical habitat budget, and that the agency exhausted its 2003 critical habitat budget in May); see also U.S. GENERAL ACCOUNTING OFFICE, supra note 20, at 27 (finding that litigation drives the listing program's priorities); Natalie M. Henry, Resources Panel to Review FWS, NOAA Budget Requests, ENVIRONMENT & ENERGY DAILY, Apr. 30, 2001 (reporting that the F.Y. 2001 budget for listing and critical habitat was depleted after only two months due to litigation-driven deadlines).

(125) In April 2001, the Bush Administration requested a budget rider to eliminate the judicially enforceable listing and critical habitat deadlines. Douglas Jehl, Moratorium Asked on Suits that Seek to Protect Species, N.Y. TIMES, Apr. 11, 2001, at A1; Natalie M. Henry, Resources Panel to Review FWS, NOAA Budget Requests, ENVIRONMENT & ENERGY DAILY, Apr. 30, 2001. The Clinton Administration was no more enthusiastic about designating critical habitat. Bruce Babbitt, Bush Isn't All Wrong About the Endangered Species Act, N.Y. TIMES, Apr. 15, 2001, at D11; Heather Weiner, Going Through the Motions: Fish & Wildlife Service's Critical Habitat Moratorium, ENDANGERED SPECIES UPDATE, May 1, 1998, at 40.

(126) See Information Quality Act, Pub. L. No. 106-554, [section] 515, 114 Stat. 2763, 2763A-153 to 154 (2000); Office of Management and Budget, Proposed Bulletin on Peer Review and Information Quality, 68 Fed. Reg. 54,023 (Sept. 15, 2003); U.S. Fish & Wildlife Service and National Oceanic & Atmospheric Administration, Endangered & Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, 59 Fed. Reg. 34,270 (July 1, 1994).

(127) OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF THE INTERIOR, REP. NO. 90-98, AUDIT REPORT: THE ENDANGERED SPECIES PROGRAM 11(1990), available at http://www.sw-center.org/swcbd/activist/ESA/FWS_Audit_1990.pdf.

(128) Pub. L. No. 89-669, [subsection] 1-3, 80 Stat. 926, 926-27.

(129) Glicksman and Coggins argue that it is also a breach of a public trust responsibility. Robert L. Glicksman & George Cameron Coggins, Federal Recreational Land Policy: The Rise and Decline of the Land and Water Conservation Fund, 9 COLUM. J. ENVTL. L. 125, 128 (1984).

(130) Pub. L. No. 88-578, [section] 2, 78 Stat. 897, 897-99 (1964); Pub. L. No. 90-401, 82 Stat. 354 (1968) (setting up a special account for state and federal land acquisition funded by certain revenue sources, most notably receipts from off-shore oil and gas leases). The receipts from outer continental shelf oil and gas were added to the fund in 1968 amendments. See U.S. GENERAL ACCOUNTING OFFICE, GAO-01-199SP, FEDERAL TRUST AND OTHER EARMARKED FUNDS: ANSWERS TO FREQUENTLY ASKED QUESTIONS 56 (2001), available at http://www.gao.gov/new.items/d01199sp.pdf.

(131) Rodgers, supra note 54, at 1010.

(132) Id.

(133) U.S. GENERAL ACCOUNTING OFFICE, supra note 130, at 56.

(134) 16 U.S.C. [section] 4601-4 (2000).

(135) David S. Wilcove et al., Quantifying Threats to Imperiled Species in the United States, 48 BIOSCIENCE 607, 607-08 (1998); see also REED F. NOSS ET AL., THE SCIENCE OF CONSERVATION PLANNING: HABITAT CONSERVATION UNDER THE ENDANGERED SPECIES ACT 2 (1997); NATIONAL RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 7, 35-38, 40, 94 (1995).

(136) NOSS ET AL., supra note 135, at 4.

(137) CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 180-81 (1992). For a description of salmon conservation issues generally, see Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH. L. REV. 519 (1990).

(138) J.B. Ruhl, Three Questions for Agriculture About the Environment, 17 J. LAND USE & ENVTL. L. 395, 405 (2002) (citing NORMAN MEYERS & JENNIFER KENT, PERVERSE SUBSIDIES 44-50 (2001)).

(139) Id. at 408.

(140) NATURAL RESOURCES CONSERVATION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, ABOUT US, at http://www.nrcs.usda.gov/about/(last visited Apr. 11, 2004).

(141) NATURAL RESOURCES CONSERVATION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, FARM BILL 2002: WETLANDS RESERVE PROGRAM FACT SHEET 1 (2003), available at http://www.nrcs.usda.gov/programs/farmbill/2002/pdf/WRPFct.pdf.

(142) Id.

(143) The forecast for better state funding of habitat conservation is even bleaker. See Erik Ness, Dodging the Budget Ax, 1 FRONTIERS ECOLOGY & ENV'T 172 (2003) (noting that state environmental programs are commonly targeted for budget cuts in times of economic crisis).

(144) 16 U.S.C. [section] 1536(a)(2) (2000).

(145) Id. [section] 1538(a); 50 C.F.R. [section] 17.3 (2004).

(146) See J.B. Ruhl, The Battle over Endangered Species Act Methodology, 34 ENVTL. L. 555, 589-91 (2004).

(147) Houck, supra note 93.

(148) WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 259 (2d ed. 1994).

(149) See HOUCK, supra note 93.

(150) The CWA subdivides its domain into over 500 point source subcategories, each one of which has a specified suite of technology-based pollution limitations. 33 U.S.C. [section] 1316(b)(1)(A) (2000).

(151) See J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263, 337 (2000) (concluding that "if a sector-based approach is used to identify farming operations that exhibit high-impact polluting effects, such as CAFOs and large-scale crop operations, conventional prescriptive regulation can yield significant environmental benefits at manageable administrative cost levels").

(152) See, e.g., U.S. EPA, Petroleum Refining Point Source Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards, 47 Fed. Reg. 46,434, 46,446 (Oct. 18, 1982) (providing a final rule for technology-based effluent limitations on petroleum refining). On the other hand, pollution control technology may be as simple as placing screens on effluent pipes to trap solids. See, e.g., Ass'n of Pac. Fisheries v. Envtl. Prot. Agency, 615 F.2d 794, 805-09 (9th Cir. 1980) (assessing agency studies of costs and benefits of screening as pollution control technology).

(153) See, e.g., Terrence J. Centner et al., Employing Best Management Practices to Reduce Agricultural Water Pollution: Economies, Regulatory Institutions, and Policy Concerns, 45 DRAKE L. REV. 125 (1997); Larry C. Frarey, Toward the Development of Performance Criteria Beyond Best Management Practices, 48 OKLA. L. REV. 353 (1995); Neri C. Johnston & Richard Eldon Davis, Permits, Best Management Practices, and Construction Sites: Don't Muddy the Water, or Else!, 61 ALA. LAW. 330 (2000); Richard Whitman, Clean Water or Multiple Use? Best Management Practices for Water Quality Control in the National Forests, 16 ECOLOGY L.Q. 909 (1989).

(154) Fischman & Hall-Rivera, supra note 78, at 78.

(155) See, e.g., 40 C.F.R. [section] 122.28 (2004) (allowing general permits for the CWA's national pollutant discharge elimination system); 33 C.F.R. [section] 330 (2004) (allowing general, nationwide permits for the CWA's dredge or fill permit program).

(156) Karen M. Wardzinski et al., National Pollutant Discharge Elimination System Permit Application and Issuance Procedures, in THE CLEAN WATER ACT HANDBOOK 58, 59-60 (Parthenia B. Evans ed., 1994).

(157) ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 524 (2d ed. 1998).

(158) National Pollutant Discharge Elimination System--Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,754 (Dec. 8, 1999).

(159) See also Fischman & Hall-Rivera, supra note 78, at 49, 73-89 (arguing that borrowing "tools" from pollution control law by using section 4(d) benefits species conservation).

(160) Final Rule Governing Take of 14 Threatened Salmon and Steelhead Evolutionarily Significant Units (ESUs), 65 Fed. Reg. 42,422, 42,480 (July 10, 2000).

(161) For instance, for MRCI development programs, the 2000 4(d) rule contains twelve substantive standards, procedures for federal approval, and requirements for ongoing evaluation of the effectiveness of implementation. Id.

(162) David S. Wilcove et al., What Exactly Is an Endangered Species? An Analysis of the U.S. Endangered Species List: 1985-1991, 7 CONSERVATION BIOLOGY 87, 92 (1993).

(163) See, e.g., Michael J. Bean & Lynn E. Dwyer, Mitigation Banking as an Endangered Species Conservation Tool, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,537 (2000).

(164) Frederic H. Wagner, Whatever Happened to the National Biological Survey, 49 BIOSCIENCE 219, 219 (1999).

(165) 16 U.S.C. [section] 1536(a)(1) (2000).

(166) Wilcove, supra note 162, at 88.

(167) See, e.g., H. JOHN HEINZ, III, CENTER FOR SCIENCE, ECONOMICS & THE ENVIRONMENT, THE STATE OF THE NATION'S ECOSYSTEMS: MEASURING THE LANDS, WATERS, AND LIVING RESOURCES OF THE UNITED STATES (2002), available at http://www.heinzctr.org/ecosystenm/report.html; U.S. GEOLOGICAL SURVEY, STATUS AND TRENDS OF THE NATION'S BIOLOGICAL RESOURCES (1998).

(168) Pub. L. No. 103-62, 107 Stat. 285 (1993) (codified at scattered sections of 5 U.S.C. and 31 U.S.C.).

ROBERT L. FISCHMAN, [c] Robert L. Fischman, 2004. Professor and Louis F. Niezer Faculty Fellow, Indiana University School of Law--Bloomington. John Applegate generously let me borrow his marvelous phrase for the title of this Article. J.B. Ruhl offered many insightful suggestions on an earlier draft. I owe many thanks to my librarian colleague, Jennifer Bryan, and to my research assistants, Elizabeth Holgate and Ben Mills, for their excellent help. Finally, I am grateful to Derek Teaney and the editorial staff of Environmental Law for their diligent editing.