The Endangered Species Act: Static Law Meets Dynamic World

Abstract

This Article looks at the discussion that preceded and accompanied the passage of the Endangered Species Act ("ESA"), focusing on why the law, including its implementation as well as its text, took the form it did. In particular, I am interested in why the ESA came to assume an unrealistically static vision of nature. The answer is complex. First, the Act's static structure is typical of law in general, which has traditionally embodied the human search for stability. Second, the Act is, inevitably, a product of the political times in which it was drafted and of a rapid and chaotic legislative process, which did not encourage thoughtful examination of the complex contours of the conservation problem. Third, it followed in part from incorrect but widely shared assumptions about the nature of the problem and potential solutions. Fourth, scientific understanding was itself in transition as the law was being crafted, moving from a focus on the tendency of ecological systems to approach equilibrium to one on the ongoing dynamics of many systems.