Beyond Delegated Authority: The Counterpart Endangered Species Act Consultation Regulations

摘要

Wildlife agencies entrusted by Congress to administer the ESA have in two recent counterpart regulations revised interagency cooperation procedures in ways that appear to fall short of statutory requirements. Two federal district courts have now ruled in a contradictory manner on the validity of these regulations. Meanwhile the regulations held valid continue to be used to allow action agencies to aggrandize their role in determining whether their projects will be "not likely to adversely affect" protected species—thus receiving no further scrutiny. In this Article, Cynthia A. Drew questions the ultimate legality of the wildlife agencies effecting such intraagency delegations of statutorily required interagency cooperation. Through an analysis of both the challenged regulations and the results of judicial review after citizen plaintiffs sued to invalidate them, she argues that such intraagency delegation practices pass neither statutory nor constitutional muster.