COOLING THE CORE HABITAT PROVISION OF THE ENDANGERED SPECIES ACT BEFORE IT GOES CRITICAL: PRACTICAL CRITICAL HABITAT REFORMULATION

Allan J. Ray, Penn State Dickinson School of Law

Abstract

The Endangered Species Act contains provisions that aim to protect “critical habitat.” However, while having generated heated controversy and conflict and having served as fertile ground for legal, political, and economic theorists, these provisions have done very little to reduce the impact on endangered species from the land uses to which private owners put their property. This article synthesizes several of the most powerful criticisms of critical habitat, together with the responses thereto, to argue that the agencies implementing the Act have low-cost options available to them under the Act as presently structured that might pay big habitat dividends over the longer term. In a nutshell, these improvements consist in the reworking of internal agency policies and manuals structuring how field office personnel conduct critical habitat analyses, interact with state and local governments, and partner with private landowners.