Buffalo Environmental Law Journal

First Page


Document Type



In Copyright


The listing determination factors nestled within Section 4 of the Endangered Species Act can be best described as the controversial heart and soul of the statute. Federal courts, charged with reviewing listing determinations, need specific criteria to provide better consistency and clarityfor the arbitrary and capricious judicial review standard In its current state, the standard has not been stated with any particularity, leaving adequacy to be based upon case-specific analysis by various federal judges regarding listing decisions of the U.S. Fish and Wildlife Service. Most crucial are contexts pertaining to conservation effort reliance. Federal agencies' increased reliance on agreements and efforts to avoid listing at-risk species has accelerated a trend delegitimizing the Endangered Species Act. Furthermore, conflicts of "warranted, but precluded" listing decisions, political interference, and deference to state management plans have clouded the waters for courts deciding whether an agency has strayed from obligations to ensure species 'survival. Considering the stark reality of increased energy exploration in remote parts of the country, a clear and determinable strategy for effort reliance is a necessity for courts when tasked with a listing decision review. Millions of dollars have been spent litigating the validity of critical habitat plans, as well as exclusions f om critical habitat. Dependable criteria will allow courts across a national spectrum to define what "arbitrarya nd capricious" truly means, preserve the legitimacy of the Act, and steer funds toward practicable habitat management, rather than fruitless litigation. Time is money. Overdependence on conservation practices shouldn't result in the deterioration ofAmerica s wildlife resources.