One of the most tortured pieces of environmental legislation produced in the last session of the 95th Congress¹ was a set of amendments to the Endangered Species Act (ESA).² The intent of the amendments was to moderate the Act's strict §7 prohibition against any federal action which threatens the survival of an endangered species of animal or plant. To accomplish this goal, Congress established an elaborate two-tiered mechanism in which conflicts between the preservation of a protected species and economic and political factors favoring the project can be reconciled.

In the short time since the amendments were enacted, three developments have occurred whch furnish revealing demonstrations of the new process. In the first, the Tennessee Valley Authority's (TVA's) Tellico Dam project was denied an exemption and thus forced to bow to the endangered snail darter. It appears, however, that the decision was based more on an economic analysis of the project than a concern for the fish. Second, the Rural Electrification Administration-sponsored Grayrocks Dam in Wyoming, which would destroy the critical habitat of the endangered whooping crane in Nebraska, was exempted on condition that specific mitigation measures be adopted to protect the species. Finally, when the Environmental Protection Agency (EPA) denied a permit necessary for construction of an oil refinery and terminal in Eastport, Maine because of its potentially calamitous impact on the endangered northern bald eagle, the private company seeking permission to build the facility applied for an exemption from §7, an application which is still pending. These three cases provide an indication as to whether the statutory changes disemboweled the Act's strong substantive mandate to protect endangered species or whether they simply introduced an acceptable degree of flexibility into the statutory scheme.