Paying Tribute to Joseph Heller with the Endangered Species Act: When Critical Habitat Isn't

The latest debate about the protection of endangered species turns on the narrow question under the Endangered Species Act regarding the designation of critical habitat. The law requires the Secretary of the Interior to identify any habitat that needs to be protected for the conservation of threatened or endangered species, but the designation does not provide any additional protection for the species, so no critical habitat ever gets designated. However, there are disagreements both within and among groups about the desirability of designating critical habitat, and FWS has chosen not to do so in almost all cases unless ordered by the court, while the National Marine Fisheries Service has adhered to its mandatory legal duty. A proposed solution, which returns to the original congressional intent of emphasizing critical habitat through a combination of legislative and administrative changes, is examined in terms of its scientific, legal, and historical context. Changes to the designation process and the adverse modification standard are proposed.