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Collaborative Governance Under the Endangered Species Act: An Empirical Analysis of Protective Regulations

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Recent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage the public and advisory groups.

The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts otherwise strict, generic prohibitions to the recovery needs of individual species on the brink of extinction. We identify conditions under which collaboration arises.

This Article examines the nearly two hundred ESA protective regulations that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. Our original empirical study explores how the rules manifest collaborative governance, as well as the extent to which they foster imperiled species recovery. We focus on provisions in which parties agree to constrain activities in exchange for limited statutory liability. Almost three-quarters of the protective regulations substitute practice-based limitations for difficult-to-detect, proximate-effect prohibitions.

Our results show that collaborative governance transforms the ESA from a statute prohibiting certain outcomes (such as harm or jeopardy to a species) to a regulatory program implementing collaboratively crafted best practices, along the lines of pollution-control statutes. Paradoxically, this shift may improve the prospect for species recovery, even with regulations that are less stringent than the standard statutory prohibitions. This insight allows us to recommend mechanisms for constructing better regulations and suggest avenues for future research.

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