In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative hopes. Thus, the statute is not structured to guide much of the decision-making that is now required, leaving its agents to interpret and implement an Act that diverges substantially from the actual contexts in which it is implemented. If the Fish & Wildlife Service and the NOAA Fisheries Service are to bring these two divergent approaches to conservation into a more productive relationship, they must start by reorganizing themselves to reflect the informational environments in which they operate. This means adapting institutionally to carry out only those conservation actions that are best carried out centrally while distributing the rest of their workload to more localized or non-centralized partners.
Jamison E. Colburn, Qualitative, Quantitative, and Integrative Conservation, 32 Wash. U. L.J. & Pol'y 237 (2010).