In a recent essay, Katrina Wyman suggests four substantial reforms aimed at improving implementation of the Endangered Species Act (ESA) and furthering species recovery: (1) decoupling listing decisions from permanent species protection;3 (2) requiring the Fish & Wildlife Service (FWS) to implement cost-effective species protection measures;5 (3) prioritizing funding for biological hotspots;6 and (4) establishing additional protected areas.

Katrina Wyman has penned a bold, provocative, and innovative critique of the capability of the Endangered Species Act (ESA or Act) to meet the challenges of an increasingly human-dominated world. Bold because the ESA, perhaps more than any other environmental law, has impassioned champions who disfavor dissent. It is no easy task to critique a law with the truly noble mission to preserve life other than our own, particularly when the law's basic premise is that the mission's success is critically dependent on abundant and altruistic actions by us.

Editors' Summary

Despite a change in the presidential administration in 2001, the U.S. Environmental Protection Agency's (EPA's) enforcement activity continues at the pace of the late 1990s. Much has been made of a decline in civil and criminal fines from fiscal year (FY) 2001 to FY 2002. Civil penalties collected by EPA declined from $101.6 million in FY 2001 to $55.6 million in FY 2002; criminal fines have declined from $94.7 million in FY 2001 to $62.2 million in FY 2002.

I. Introduction

Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking's proposed definition based on cost of changes or maintenance address this clear language of Congress. --Victor B. Flatt, A.L. O'Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003.

Transboundary pollution in North America has received international attention for over 90 years. Famous, or infamous, examples from the past include the sulfur dioxide emitted by a smelter near Trail, British Columbia in the 1920s; the salinization of the Colorado River in the 1960s; and the contribution of U.S. power plants to Canadian acid rain in the 1980s. Despite a series of bilateral agreements and institutions addressing particular concerns and some notable successes, transboundary pollution continues. Indeed, every section of both borders seems to have its own notorious problem.

The bottom line is that capitalism may now be getting its ultimate test. For the smog market, more than any other system, will reveal whether financial incentives can prod major corporations into simultaneously acting for the public good and their own profit. Tom Elias The Daily Breeze, December 27, 1993

Since then, the Bush Administration's "Clear Skies Initiative" has been officially unveiled. As appeared would be the case in mid-2002, it would establish a "trading" program in which the government explicitly approves emissions by polluters that would cause acid rain, smog, fine particle pollution, and contamination of the food supply with the toxic chemical mercury. Polluters could swap units of smog, acid rain, or fine particles--and the death and illness that they represent--like so many head of cattle or shares of stock.

Unprecedented Events