The Endangered Species Act (ESA) was legislated in 1973. Its objectives are to defend plants and animals listed by the federal government as “endangered” or “threatened.” An endangered species is one that is in danger of extinction. A threatened species is likely to become an endangered species.
There are two central sections of the Endangered Species Act:
- Section 7: Federal agencies must ensure that their actions (including issuing permits for private activities) are not likely to endanger a listed species or result in the destruction or modification of habitat.
- Section 9: It is illegal for anyone to “take” a listed animal or significantly modify its habitat. This law also applies to private parties and private land. Landowners may not harm endangered animals or their habitats on their property.
The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Services (NMFS) enforce the ESA.
The ESA is reinforced by other relevant statutes and permitting programs through which protected species arise, including the following:
- The National Environmental Policy Act (NEPA)
- The Clean Water Act (CWA), including the section 404 permitting program
- The Marine Mammal Protection Act (MMPA)
- The Magnuson-Stevens Fishery Conservation and Management Act (MSA)
- The Migratory Bird Treaty Act (MBTA)
- The Bald and Golden Eagle Protection Act (BGEPA)
- The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
- The Lacey Act
Regulating Environmental Law Issues
There are many different state and federal environmental laws. Congress has authorized many federal agencies to investigate environmental matters and enforce federal environmental regulations and laws.
The federal Environmental Protection Agency (EPA) most commonly investigates and enforces federal environmental laws. Many states have their own environmental laws specific to their regional needs, and state agencies enforce these regulations.
What Do Environmental Laws Govern?
Environmental laws are used to regulate many aspects of business and public use. The primary concerns of environmental law are:
- Air quality;
- Water Quality;
- Waste Management;
- Contaminant Cleanup;
- Chemical Safety; and
- Hunting and Fishing.
While many of the above are primarily concerned with businesses, issues with hunting and fishing are mainly geared towards the consumer. However, they can also impact businesses if they wish to dam a body of water (impacting fish migration) or build on conservation/hunting lands
Why Is the ESA Important?
The ESA is necessary because it has a lot of potential to affect private property interests.
There are several things that the ESA does, including:
- Listing: To get federal protection, a species must be added to the official list of endangered and threatened species. Someone may petition the government to list the species. The determination is based on scientific information, and the process should take no more than 27 months.
- Critical Habitat: The designation of critical habitat is required. A critical habitat is an area paramount to the conservation of the species (even those areas that are not presently occupied by the species). It is a habitat necessary for the recovery of the species.
- Recovery Planning: Recovery plans are developed to reverse the fall of a species and nurse back the population.
- Agency Actions: The ESA provides for review of federal agency actions.
- Habitat Conservation Plans: Habitat Conservation Plans are exemptions for the timber industry, real estate developers, and others. Non-federal landowners can apply for exemptions (or “Incidental Take Permits”). To obtain one, they must create a Habitat Conservation Plan to moderate their impact.
How Can I Request to List a Species as Endangered or Threatened?
The process of requesting to list a species as threatened or endangered is as follows:
- Petition FWS or NMFS: Petitions are formal proposals to list a species and require published findings
- Service Review (90 days): FWS or NMFS must make a finding within 90 days as to whether or not there is “substantial information” indicating that a listing may be warranted
- Review and Information Gathering (12-month status review): Within one year of the petition, FWS or NMFS determines whether the listing is or is not warranted. The fate of the petition depends on the findings:
- “Not warranted”: Species are not listed
- “Warranted but precluded”: Subsequent one-year findings are required
- “Listing is warranted”: A proposed rule is published to list in the Federal Register
- Peer Review: 3 expert opinions of species specialists are requested. Input from the public, the scientific community, and federal and state agencies are sought. After this, a determination to list or not is generated
- Species Added to List: The final rule is published in the Federal Register and becomes effective 30 days after the announcement
What Should I Do If I am Accused of an Environmental Violation?
For the most part, environmental violations are civil, meaning they are enforced via lawsuits in a civil court, not a criminal court. The immediate penalties for environmental violations are monetary. Fines can be extremely high in the case of significant violations, and particularly extreme infractions may lead to criminal penalties.
Agencies also enforce environmental law violations, and agencies may hold administrative hearings to decide on matters of environmental violations.
It would help if you were prepared to gather your evidence and environmental reports, as the EPA or local government typically requires. If you are guilty of contamination/violations, be prepared to begin the clean-up process.
Further hiding the violations will only result in more severe consequences and criminal penalties.
Do I Need a Lawyer Experienced with the Endangered Species Act?
Since its passage nearly a half-century ago, the Endangered Species Act (ESA) is occasionally viewed as standing between environmental protection and business growth. A team of experienced environmental lawyers, litigators, and wildlife law leaders can help ensure that commercial success and wildlife conservation can go hand in hand.
An environmental lawyer can help businesses, landowners, designers, investors, industry groups, and teams address every aspect of wildlife law, including regulatory actions, project licensing, consultation, incidental take approval, habitat planning, and litigation.
Many environmental lawyers are at the forefront of significant regulatory developments and can help you understand administrative requirements and conservation opportunities to plan and position for the future.
An environmental lawyer can successfully represent you in licensing, regulatory and litigation matters involving various wildlife laws, settings, and species.
The lawyers at LegalMatch have backgrounds in regulatory, permitting, and litigation experience with species including polar bears, Florida panthers, manatees, whales, whooping cranes, prairie chickens, wolverines, mussels, sturgeon, bats, vipers, and a wide spectrum of other species (including invasive species); in habitats varying from the shores of New England and the swamps of Florida to the Great Plains and across the hill country of Texas to California and Hawaii.
An environmental lawyer can work alongside or before numerous federal and state agencies, including the U.S. Fish & Wildlife Service (FWS), National Marine Fisheries Service (NMFS), U.S. Army Corps of Engineers, U.S. Department of Justice, and more.
Some environmental attorneys use the court system to handle pressing environmental problems. Others advocate for ordinances and regulations to defend the environment and promote sustainable growth.
Environmental regulations cover a broad area of law and exist at the local, state, and federal levels. A government lawyer who has experience with the Endangered Species Act would be able to inform you on how you can take advantage of the ESA to protect a species. A lawyer would also be able to inform you of the specifics of the law and your chances of getting a species listed.
