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The Outer Limits of Endangered Species Act Liability—The ESA’s Indirect Effect Regulation and Its Application to Climate Change

March 2011

Citation: 41 ELR 10204

Issue: 3

Author: Hanspeter Walter

Good scientists have active minds and creative imaginations. These traits allow scientists to develop hypotheses and design experiments to test them with the hope of moving scientific inquiry and the state of knowledge ever further. While most laws do not implicate or emphasize science, the federal Endangered Species Act (ESA) is among the few that does. Specifically, ESA §7 demands that during consultation on the potential effects of federal actions on ESA-listed species, “each [federal] agency shall use the best scientific and commercial data available.” Unlike in pure scientific investigation, however, the ESA limits the scope of inquiry with regard to assessing the indirect effects of an action. Thus, where a scientist might conceive of a potential indirect effect from use of a pesticide, implementation of a resource management regime, or carbon emissions from a local power plant, the ESA demands more before such possibilities are labeled indirect effects of the action.

Hanspeter Walter is a Senior Associate with the law firm of Kronick Moskovitz Tiedemann and Girard.

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