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Implementation of ESA and Related Litigation

Pinguins, an eagle landing, and sea turtle images.  Courtesy of USFWS

The Supreme Court has described the Endangered Species Act (ESA) as “the most comprehensive legislation for the preservation of endangered species enacted by any nation.” TVA v Hill, 437 U.S. 153 (1978). The central purpose of the ESA is
“to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. . .”

The agencies that implement the ESA – the U.S. Fish and Wildlife Service of the Department of the Interior (FWS), and the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Agency (NOAA), the Department of Commerce – decide whether a species is either “threatened” or “endangered” and should be listed under the ESA. In general, FWS has authority over terrestrial and freshwater species and NMFS has authority over marine species.

Once listed as “endangered” or “threatened”, the species is then afforded certain legal protections.

Legal Protections

Unauthorized “Take”. ESA section 9 prohibits the unauthorized “take” of listed species. The ESA broadly defines “take” to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” Illegal take can give rise to criminal enforcement, civil administrative penalties and civil judicial action for injunctive relief. This prohibition applies to all persons and entities.

Required Federal Agency Consultation . Another major species protection measure applies only to federal agencies. ESA Section 7(a)(2) requires:

each federal agency, in consultation with the relevant Service, to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species."

To meet this consultation obligation, federal agencies obtain a “biological opinion” from either FWS or NMFS on the effects of the agency’s action.

Much of the Wildlife Section’s ESA litigation concerns either the Section 4 standards for listing or the Section 7 consultation process. Click on the links below for discussion of some of the Section’s more notable and interesting cases, as well as ESA cases in the Supreme Court.


Updated May 16, 2023