When Congress passed the Endangered Species Act in 1973, it did so in the belief that threats to emblematic creatures like bison or commercial crops such as fish could be resolved simply by placing limits on hunting and trade. Few lawmakers could have foreseen how the implementation of that law would change over the years, as the directive to save seemingly insignificant species would extend to the protection of entire ecosystems. As the courts have interpreted the law in the light of a better understanding of science, the ESA increasingly has become a tool used to block development projects and restrict private land use. Environmental attorney Shannon Petersen has written a political and legal history of the Endangered Species Act that explains how and why this piece of legislation has become so controversial: a law hailed by many as one of the most intelligent ever written, reviled by as many as an ill-conceived impediment to progress. Others have recorded the ESA's relation to the emergence of modern environmentalism; Petersen now addresses the legal history of the Act, showing how the courts created a far more powerful law than Congress originally envisioned and profoundly influenced environmental policy during the last decades of the twentieth century. Acting for Endangered Species demonstrates that litigation and judicial decision-making have played a far more important role in shaping the modern environmental movement than has been previously thought. It focuses on two major controversies that developed over the implementation of the Act: a Supreme Court-ordered delay in dam construction when a fish called the snail darter was declared endangered and a threat to logging in the Northwest in the interest of saving the spotted owl. In reviewing these seminal cases, Petersen demonstrates the complex interplay among government, science, environmentalism, and natural resource industries in shaping endangered species policy in America. The ESA is now over a quarter-century old and remains the broadest and most powerful law in the world for the protection of species; yet, as Petersen observes, it remains unclear whether the law has been successful. Acting for Endangered Species is a story of strategic lawsuits, broad judicial interpretations, and administrative retrenchment that have left the ESA itself on the brink of extinction, and it demonstrates the extent of environmental policy dilemmas in America today.
Shannon C. Petersen is an attorney with the firm of Sheppard, Mullin, Richter & Hampton in San Diego and coauthor of the volume The Endangered Species Act.
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