The flexible, adaptable, Endangered Species Act


Over at the ESA blog, Keith Rizzardi has a post up about NOAA Fisheries new “incidental take permit” for listed species of salmon and steelhead in Washington.  Basically, because there are both listed and unlisted species of salmon and steelhead in the State, the permit allows anglers to catch protected fish without fear of violating the Endangered Species Act, so long as they do not do so intentionally.  Keith writes that the “permit resolves one of the tensions created by the ESA's rigid prohibitions.”

Now, I don’t mean to nitpick, and I like the ESA Blog quite a bit, but putting aside what you think of the wisdom of NOAA Fisheries’ policy, this is actually an example of the flexibility of the Endangered Species Act.  Historically, one of the big problems with the political debate surrounding the Endangered Species Act has been the tendency to caricature the law as a rigid, inflexible, and even draconian.  But, as Keith demonstrates, in practice the Endangered Species Act is actually quite an accommodating statute. Like many of our other environmental laws, although the Endangered Species Act contains a set of facially strict prohibitions, those prohibitions are immediately qualified by a whole slew of provisos, qualifications, and exceptions. In short, Endangered Species Act is a perfectly normal, albeit very important, environmental law.