Take it to the Limit: The Illegal Regulation Prohibiting the Take of Any Threatened Species Under the Endangered Species Act

摘要

Following the introduction, part II of this article will provide a brief background on the adoption of the Endangered Species Act. Part III will explain that the statute does not authorize the agencies to extend the take prohibition to all threatened species. Part IV will argue that returning to the statutory scheme would result in a fairer distribution of the costs of species protection by imposing the costs of prophylactic protection on agencies and the public generally. Burdening individuals would be a last resort, as Congress intended. Finally, Part V will identify how Congress’ policy is a reasonable way to align private incentives with species protection. The statute’s approach would encourage property owners to stop a threatened species’ further slide, to avoid imposition of the take prohibition, and to recover endangered species to the point where they can be downlisted and the take prohibition lifted. This would make the statute more effective at accomplishing its primary goal – recovering species to the point that they no longer require protection.