UCLA Journal of Environmental Law and Policy

Vol. 34.1 - Front Matter

Vol. 34.1 - JELP Masthead

Vol. 34.1 - Table of Contents

The Endangered Species Act (ESA) requires that areas be designated as critical habitat for species that are protected under the Act. Once designated, critical habitat is protected from “destruction or adverse modification” by Section 7(a)(2) of the ESA, which applies to any action authorized, funded, or carried out by a federal agency, including permits and other authorizations issued to private landowners and resource users. In 1978, Congress enacted extensive amendments to the ESA that were intended to limit the scope of critical habitat to areas essential for the survival of protected species. Based on these amendments, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service adopted regulations that recognized critical habitat’s limited role in conserving species, including a definition of “destruction or adverse modification” that emphasized impacts to the protected species’ survival. In Sierra Club v. U.S. Fish and Wildlife Service and Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service however, the Fifth Circuit and the Ninth Circuit respectively held that the agencies’ adverse modification definition is unlawful and that the purpose of critical habitat is to recover species. These cases have strongly influenced the administration of the ESA over the past decade and the Services recently relied on these cases to justify regulations that will transform critical habitat into recovery habitat. The authors maintain that a reassessment of the role of critical habitat is needed to ensure that the regulatory and judicial treatment of critical habitat conforms to the intent of Congress.

China’s air pollution has become a major environmental concern for the Chinese government and the Chinese public. Although China has established a comprehensive legal framework for environmental protection, many obstacles impede the enforcement of environmental laws and regulations. In light of the Chinese government’s vigorous use of emission trading as a primary means of addressing the environmental problems in recent years, this paper identifies and explains the major economic, legal, political, social, and cultural impediments to enforcing the environmental regulation of China. The paper then engages in a comparative analysis of the emission trading programs of the United States and China, focusing on their different features and varied performance levels in terms of participation and compliance enforcement. The analysis reveals that China’s pollution emission trading programs are simply hybrids of traditional command-and-control and modern market-based approaches to environmental regulation – approaches that have been unable to help resolve long-standing enforcement problems. Nevertheless, such empirical findings do not lead to the conclusion that China should give up emission trading. The study shows that emission trading possesses advantageous features that can help relieve the economic, political, legal, social, and cultural impediments to enforcement faced by China. The paper thus proposes that the Chinese government should undertake further reforms to establish a real market for emission trading.

Tension between science and the law is a pervading feature of Endangered Species Act (ESA) jurisprudence. Incorporating the scientific discipline of ecology within the legal landscape presents distinct challenges, particularly in comparison with more traditional laboratory sciences. Within the realm of Endangered Species Act liability, the intricacies of nature exacerbate already complicated links of causation, challenging the ability to prove violations of the “take” prohibition. Because uncertainties permeate scientists’ ability to understand complex ecosystem processes, courts should rely on the overarching practicality of common law principles when reviewing ecological testimony.

When evaluating claims that allege violations of the “take” prohibition, the proximate causation standard operates as a threshold to prevent assigning liability to a party or entity that otherwise may be just one insignificant link in an attenuated ecological chain. The proximate causation standard advanced by the Supreme Court in Babbitt v. Sweet Home demonstrates the practicality of maintaining established legal principles, specifically as a limit to relying on scientific testimony as a means of proving causation. More recently, the reasoning in Aransas Project v. Shaw, where an environmental group alleged that the Texas Commission of Environmental Quality caused the “take” of endangered whooping cranes,illustrates the challenges associated with proving the cause of ecological injuries. Although the United States District Court for the Southern District of Texas assigned ESA liability based on scientific testimony, the Fifth Circuit reversed the lower court because this attenuated chain of causation lacked the required proximate cause analysis. In the context of ESA liability, where judges must understand complex ecosystem processes, this dichotomy reflects the reliability of proximate causation as a foundation to ensure equitable results.