The Endangered Species Act (ESA)¹ is widely viewed as one of the most arbitrary and irksome statutory impediments to federal and federally-licensed construction projects. As enacted in 1973, the Act contained such a strict prohibition on federal activities interfering with endangered species that it could, at least in theory, bring the most massive public works project to a screeching halt if it were to jeopardize even the least conspicuous animal or plant. The Act's defenders contend that these perceptions have no basis in reality, and that in practice the Act has never stopped a federal project with the possible exception of the (now completed) Tellico Dam.² Nonetheless, following the Supreme Court's 1978 decision in Tennessee Valley Authority v. Hill³ that the endangered snail darter was to prevail over the dam, the law was amended in an attempt to better harmonize its original goals with other important national objectives.

Almost immediately, the 1978 amendments were put to the acid test. The Department of the Interior's plan to lease the Georges Bank, off the coast of Massachusetts, for oil development not only threatened the area's role as one of the world's most productive fishing grounds, but also risked injury to the endangered humpback and right whales that frequent the area. More recently, the government's plans to lease oil and gas tracts in the Beaufort Sea of Alaska have similarly been challenged on the grounds thatthe endangered bowhead whale and possibly the gray whale could be destroyed by a major oil spill. In both cases, the nation's need for new energy sources was pitted directly against the fate of perhaps some of the most endangered of species.