Abuse of the Warranted but Precluded Designation: A Real or Imagined Purgatory?Southeastern Environmental Law Journal (2010)
AbstractDespite a strong policy of protecting all seriously declining species, the Endangered Species Act (ESA) falls far short of its goal. Currently, it protects less than nineteen percent of plant and animal species at risk of extinction. While many factors contribute to this shortfall, critics allege that abuse of the warranted but precluded (WBP) designation plays an integral role. The WBP designation allows the listing agency to acknowledge that a species warrants protection under the ESA, but delay such protection if it only has the resources to address higher priority species. The purpose of the WBP designation is to give the listing agencies more flexibility in coping with statutory timelines. It was never intended to allow undue delay in listing species. Twenty-eight years after its inception, however, many commentators assert that the United States Fish and Wildlife Service (FWS) has done exactly that: it has abused the WBP designation to create crippling delays and subvert the purpose of the ESA. The FWS, on the other hand, argues that the enormous backlog of WBP species is due to severe underfunding combined with the strain of complying with court orders and settlement agreements stemming from the 1995 listing moratorium. This dispute has earned the WBP designation a tainted reputation as a purgatory for at risk species, where they go extinct while waiting for ESA protections. This Article tests the accuracy of that reputation, and of the allegations of abuse. Part I presents a background of the ESA generally, and particularly of the WBP designation. Part II discusses the allegations of abuse by the FWS and the Agency’s counter arguments. Part III proposes ways to move forward with the WBP designation in a way that protects the species and provides the FWS the flexibility it needs.
Publication DateFall 2010
Citation InformationK. Mollie Smith. "Abuse of the Warranted but Precluded Designation: A Real or Imagined Purgatory?" Southeastern Environmental Law Journal (2010)
Available at: http://works.bepress.com/k_smith/1/