In the first two appellate decisions¹ interpreting the Endangered Species Act of 1973,² the Fifth and Eighth Circuit Courts of Appeals recently reiterated the Act's placement of responsibility on all federal agencies to ensure that their actions do not jeopardize the continued existence of endangered forms of wildlife. The rulings, which expressly acknowledge the mandatory nature of these duties imposed on federal agencies by §7 of the Act, promise to stimulate more vigorous oversight of federal activities that may jeopardize endangered species or their habitat. The decisions send out confusing signals, however, as to the Interior Department's³ role vis-à-vis other agencies in determining under §7 when a particular federal action or project jeopardizes the continued existence of an endangered species, and exactly what subsequent administrative action is necessary to prevent such harm. Thus, the decisions leave unsettled important structural aspects of the federal regulatory program for protecting endangered forms of wildlife from the detrimental impacts of federally authorized or funded activities.

Section 7 of the Endangered Species Act of 1973 resembles §102 of the National Environmental Policy Act (NEPA) in its broad application to federal actions and in the potential magnitude of its impact on federal activities. But unlike NEPA, which some federal judicial circuits have interpreted to impose only procedural obligations, §7 unequivocally imposes a substantive duty on federal agencies by directing them, "in consultation with" the Secretary of Interior, to take any measures necessary "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary of Interior . . . to be critical."⁴