Preview of Upcoming Article: Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act

Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country is blessed.  It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans.”

            – President Richard Nixon’s Statement on Signing the Endangered Species Act

This blog is a preview of Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act, one of the articles featured in PELR’s upcoming winter edition. As the title suggests, reinitiated consultation is a critical feature of the Endangered Species Act (ESA) and one that has been highly contested in recent years. Authors Catherine E. Kanatas and Maxwell C. Smith provide an in-depth look at the history of the ESA and potential impacts ongoing litigation could have on the legal basis, power, limits, and consequences of reinitiated consultation.

Reinitiated consultation plays a fundamental role within Congress’s statutory scheme, as the glue that holds the ESA’s protective scheme together. While the ESA generally prohibits any injury to an endangered species, Congress has authorized the U.S. Fish & Wildlife Service and Marine Fisheries Service (Service) to permit such injuries under certain circumstances. However, without reinitiated consultation, these preauthorized injuries or “takes” would create gaping leaks in Congress’s Ark, leaving little or no safety to endangered species. Despite its central role, Congress never provided for reinitiated consultation within the act itself. While the Service has acknowledged this silence, the courts generally do not raise this question of statutory authority.

In light of the ambiguities within the ESA and Congress’s clear intent for agencies to reinitiate consultation expressed within the legislative history of the act, this article concludes that the practice is legally supportable. Given the significance of reinitiated consultation, and the likelihood that it is here to stay, the article explores how courts have reviewed suits concerning reinitiated consultation. This discussion highlights potential challenges and best practices for Federal agencies and permitees.  With few exceptions, courts have taken a surprisingly deferential approach to reviewing agency decisions to reinitiate, or more commonly not reinitiate, consultation. Nonetheless, some courts have taken a much stricter approach when considering the triggers for reinitiated consultation and have frequently insisted that those triggers be as meaningful and as exact as possible.

To learn more about the Endangered Species Act and reinitiated consultation, be on the lookout for Catherine E. Kanatas and Maxwell C. Smith’s Reexamining What We Stand to Lose: A Look at Reinitiated Consultation Under the Endangered Species Act in PELR’s Winter Edition.

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