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Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: A Clarion Call for Property Rights Advocates

September 1995

Citation: ELR 10478

Author: Beth S. Ginsberg

Editors' Summary: Property rights advocates implicitly complained in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that a Fish and Wildlife Service regulation that aimed to protect endangered and threatened species by defining "harm" to include habitat modification impinged on their rights as private landowners by asking them to share with the government responsibility for protecting such species. The U.S. Supreme Court upheld the regulation as reasonable given the relevant language of the Endangered Species Act. The reasoning of the Court's majority, concurring, and dissenting opinions mirrors the property rights debate currently before the 104th Congress. The decision will likely impact the debate, serving as the "poster child" for those seeking to reverse what many argue has been successful, bipartisan implementation of the Act. In this Article, the author reviews the Act and the Supreme Court's opinions in Sweet Home, and analyzes the decision's likely impact on the property rights debate as it relates to the Act. The author concludes that the zeal of the 104th Congress will likely overcome the results of the Supreme Court's decision.

Ms. Ginsberg is a partner in the D.C. office of Bogle & Gates. Her practice includes litigation, counseling, legislative, and regulatory activities under all environmental and natural resource statutes. Ms. Ginsberg has also served as the Senior Advisor to the U.S. Environmental Protection Agency's Assistant Administrator for the Office of Solid Waste and Emergency Response. Ms. Ginsberg also held a trial attorney position with the environmental defense section of the Environment Division of the U.S. Department of Justice.