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This Article fills a void in the legal scholarly literature by evaluating and proposing attainable legal strategies to address the current substantial declines in beneficial insect populations. Despite perceptions of insects as odious pests, the reality is that insects, the most abundant and diverse animals on earth, provide ecosystems services that are crucial to human welfare and the existence of life. Insects, including thousands of species of bees, wasps, butterflies, moths, beetles, and flies, are indispensable pollinators of agricultural crops. Beyond pollination, insects carry out natural pest control, decomposition, and nutrient cycling vital to both agricultural and natural ecosystems. In recent years, a number of scientific studies have raised the alarm over serious declines in populations of insects that provide these essential services. Drivers of insect population declines include loss of habitat, pesticide use, and climate change. Complex synergies among these drivers exacerbate the problem. In this Article, we analyze three federal statutes to determine what, if any, utility they may have in addressing the problem of declines of beneficial insect populations: the federal Endangered Species Act, the Farm Bill, and the Federal Insecticide, Fungicide, and Rodenticide Act. An in-depth evaluation of these statutes reveals that the Endangered Species Act and Farm Bill have a limited role to play in protecting beneficial insect populations. The Federal Insecticide, Fungicide, and Rodenticide Act, on the other hand, has the potential to dramatically reduce insect population declines resulting from habitat loss and pesticide use. After taking a deep dive into this federal law, we propose solutions that can be implemented by the U.S. Environmental Protection Agency without the need for additional congressional action. Specifically, we offer five distinct recommendations that the Environmental Protection Agency could implement with its existing regulatory authority that would substantially reduce the decline in beneficial insect populations and the ecosystem services they provide, which are essential to protect life on earth. [ABSTRACT FROM AUTHOR]

The article discusses the Endangered Species Act (ESA) passed by Congress in 1973 to preserve ecosystems and protect endangered species from extinction. Topics covered include the U.S. Supreme Court's holding in Weyerhaeuser v. U.S. Fish and Wildlife Service, the application of ESA in this case, and the Court's failure to define what constitutes habitat.

The article discusses the court ruling in Friends of Animals v. U.S. Fish & Wildlife Service, upholding the Service's proposed action to remove Barred Owls, an invasive species protected under the Migratory Birds Treaty Act (MBTA), for the benefit of Spotted Owl, a threatened species protected under MBTA and the Endangered Species Act (ESA). Topics covered include the history of Northern Spotted Owl and Barred Owl studies, and the implications of this ruling for scientists and policy makers.

In 2019, the Supreme Court decided Kisor v. Wilkie, a case that asked the Court to revisit Auer deference, the doctrine which instructs courts to defer to an agency's reasonable interpretation of its own ambiguous regulation. Auer deference, along with other judicial deference doctrines, has received vehement criticism jfom legal scholars and political scientists. Among these criticisms is the assertion that Auer deference allows too much opportunityforjudges' own '" views of reasonableness" to infiltrate their legal analysis. increasing the likelihood that judicial deference to agency interpretations will be significantly influenced by ideology. The majority decision in ¥Asor purported to articulate clearer standards tor the application of Auer deference and require judges to more clearly articulate their analysis in cases where Auer deference may be appropriate. This Note considers whether the Kisor framework could mitigate the impact of.judicial ideology on deference decisions. Jtfocuses in particular on the use of Auer deference in cases involving the Endangered Species Act, a statute which has been highly polarizing along party lines. The Note examines several cases, decided before and alter Kisor, in which Jideral courts were asked to rule on the meaning of Endangered Species Act regulations. This analysis suggests that while Kisor is unlikely to completely remove the influence of.judicial ideology on deference decisions, its requirement that judges "show their work" has the potential to significantly reduce the role that judicial ideology plays in determining what constitutes a "reasonable" interpretation of an ambiguous regulation. While it is too soon to defulitively evaluate Kisor's impact on deference decisions, this Note suggests that the Kisorframework encourages a more principled and ideologically neutral approach to difficult agency deference decisions. [ABSTRACT FROM AUTHOR]

Beginning in the 19803, conservation groups began campaigning for the federal government to list the fluvial Arctic grayling-a relative Of the salmon that lives only in the cold waters of North America-as threatened or endangered under the Endangered Species Act. In 2014, the U. S. Fish and Wildlife Service declined to list the grayling under the Act, citing, among other things, the uncertainty associated with how the grayling would respond to climate change. The Endangered Species Act has long been heralded as one of the United States' most protective environmental statutes. dice in part to its precautionary mandate that the government take action to help species before they face extinction. But agency implementation and judicial interpretation of the Endangered Species Act has only recently begun to grapple with the crisis of climate change, which threatens global biodiversity and promises to test the strength of the Endangered Species Act. One factor complicating traditional enforcement of the Endangered Species Act in the face of climate change is the uncertainty that can cloud species-specific climate science. This uncertainty makes it difficult jbr agencies to know how climate change will impact a particular species. In the face of this uncertainty, this Note argues that agencies should embrace the precautionary principle to help guide listing decisions and critical habitat designations under the Endangered Species Act. [ABSTRACT FROM AUTHOR]

The article analyzes whether the U.S. National Environmental Policy Act (NEPA) helps or harms critical habitats designations protected under the Endangered Species Act (ESA) and assesses critical habitat federal rules. Topics discussed are requirements of ESA to designate critical habitat for threatened and endangered species, critical habitat rulemaking completion times by species classes and for Hawaiian and non-Hawaiian species, and rules designating habitat for multiple species.

In the forty-four years since President Nixon signed the Endangered Species Act (ESA), states have become increasingly frustrated by the lack of meaningful opportunities for involvement in the Act's implementation. This frustration has led to a national discussion on ESA reform, a Republican priority supported by the bipartisan Western Governors' Association and others. The frustration stems from being relegated to a post-listing back seat, despite state primacy in the management of imperiled species prior to a listing as threatened or endangered under the ESA. This frustration is well placed, as this is not the role Congress intended states to play when it passed the ESA in 1973. Instead, under the long-forgotten section 6(g)(2) of the ESA, Congress provided states with the authority to oversee the implementation of the ESA post-listing. This Article advocates for the utilization of this never-implemented authority to achieve non-legislative ESA reform. In reaching that conclusion, this Article provides a uniquely comprehensive review of the legislative and regulatory history of the ESA, providing a clear demonstration of Congress's intent to create a cooperative federalism regime under the ESA and the regulatory agencies' refusal to carry that intent forward. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of U.S. Court of Appeal for the District of Columbia in the case Union Neighbors United, Inc. v. Jewell which held that the U.S. Fish and Wildlife Service (FWS) met its obligations under the Endangered Species Act (ESA) but failed to comply with the National Environmental Policy Act (NEPA). It mentions Incidental Take Permit (1TP) for the endangered Indiana bat and particular project posed a threat to an endangered species.

Environmental regulation invariably requires making decisions in the face of scientific uncertainty. However, making decisions in the near-absence of evidence--essentially, the most extreme uncertainty--is a special case because it most plainly exposes the defaults and preferences of those making the decisions, and because it may inspire creative ways of reducing the probability of error. Here, we relate the case of an Endangered Species Act listing of several rockjish species in Puget Sound, Washington, which illustrates a set of decisions the National Marine Fisheries Service made in the absence of critical information about those populations. Subsequent scientific effort and technological advances have been powerful tests of the listing decision, and have suggested different outcomes for each of the three species under evaluation. We discuss this case in the context of agency discretion and internal incentives to make or defer decisions. We then highlight the roles of technological change and institutional learning as they intersect with these incentives, and suggest structural means of enabling this kind of effective data use by administrative agencies more generally. [ABSTRACT FROM AUTHOR]

Environmental law usually features statutory or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this Article, we offer a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decision making "shared sovereignty. ". In this analysis, we compare implementation of the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate the shared sovereignty paradigm, although thev vary in their interpretation of it. The first two statutes allow commenting and consulting agencies (we call both "expert" agencies) some authority, often significant, over the decisions of so-called "action agencies. " More decisive authority for expert agencies exists under the Endangered Species Act. The latter two statutes give expert agencies conclusive decision-making authority. We think that drafters of future environmental legislation and regulations may profit from this comparative analysis of pluralistic agency decision making, and we claim that the environment has benefited from the last several decades of implementing the shared sovereignty paradigm. Our view is that shared sovereignty is--and has been--an integral part of modern environmental law and should continue to be a foundational element in its future. [ABSTRACT FROM AUTHOR]

The article focuses on the U.S Court of Appeals for the Ninth Circuit's decision in case Alaska v. Lubchenco that addressed an agency's supervision of the fishing industry in Alaska because of environmental concerns. Topics discussed include the Endangered Species Act (ESA), issues surrounding the decline of the steeler sea lion population steadily in Alaska and the National Marine Fisheries Service's decision to list the steiler sea lion population as threatened under the ESA.

Climate change is going to severely impact water supplies in the western United States, particularly in California. As climate change degrades aquatic habitats, conflicts between environmental protection and human consumption will increase. This Note explores how California's State Water Resources Control Board can play a more proactive role in water management by using the public trust doctrine to resolve water conflicts and better prepare California's water systems for climate change. The Note suggests that the State Water Resources Control Board rely on external procedural mechanisms such as the federal Endangered Species Act as an informational resource. In conclusion, this Note calls for the California State Legislature to provide the State Water Resources Control Board with more financial support so that the Board can adequately manage California's scarce water resources. [ABSTRACT FROM AUTHOR]

Federal action consultations are a key component to the Endangered Species Act's conservation regime. Biological opinions produced during consultations usually contain the bulk of the administrative record for review and must be based on the best science available. Because courts have historically deferred to agency science, wildlife agencies are encouraged to rely heavily on purely scientific explanations for their conclusions. However, because of the uncertainties inherent in environmental science, over-reliance on purely scientific explanations may mask an agency's policy-based choices and consequently leave its decision vulnerable to judicial review. The decision in Dow AgroSciences LLC v. National Marine Fisheries Service exemplifies this problem, showing that courts may be overturning adequately reasoned agency decisions because the wildlife agency failed to explain these inherent policy-based choices. This article argues that to improve the ESA 's consultation framework, wildlife agencies should acknowledge and explain the policy choices embedded in their biological opinions, completing the administrative record and ensuring that courts uphold reasoned decision making on review. [ABSTRACT FROM AUTHOR]

The article reflects on the failure to assure environmental protection under the U.S. Forest Service regulatory system for the fish coho salmon that are on the verge of extinction because of gold mining. It discusses the U.S. Court of Appeals for the Ninth Circuit case of Karuk Tribe of California v. U.S. Forest Service, wherein the Tribe claimed that the Forest Service failed to comply with the U.S. Endangered Species Act as it approved Notices of Intent (NOI) to permit suction dredge mining.

The article discusses the U.S. Court of Appeals for the District of Columbia Circuit case of Friends of Blackwater v. Salazar, wherein it was alleged that delisting of flying squirrel from the endangered species list is a violation to the U.S. Endangered Species Act. The claims raised in this regard highlighted the issues that the squirrel should not be delisted unless its recovery plans are met and that the U.S. Fish and Wildlife Service should use persistent data rather than population data.

Although hailed as a "model of cooperative federalism, " the Clean Air Act often leaves state governments and the United States Environmental Protection Agency (EPA) in an uneasy stalemate over the implementation of emissions reductions regulations. As states often face pressure from polluting industries to reduce federally-enforceable Clean Air Act commitments, and as the United States EPA does not have the capacity to closely control state compliance with federal law, there arise instances where states shirk their obligations under the Clean Air Act. For decades, private and non-profit organizations have been able to use the citizen suit provision of the Clean Air Act to enjoin such state implementation failures. This Note challenges the Sixth Circuit's decision to curtail the scope of such suits in Sierra Club v. Korleski. This Note explores the history of the citizen suit provision and finds that it has been consistently used to prevent states from subverting national environmental goals under the Clean Air Act. Contrary to the Sixth Circuit's contention, this Note argues that Endangered Species Act caselaw is inapposite for an analysis of the scope of the Clean Air Act citizen suit provision. This Note concludes by arguing that authorizing private party suits to enjoin states from flouting voluntary Clean Air Act obligations does not offend the Tenth or Eleventh Amendments of the United States Constitution and instead promotes the legitimacy of the cooperative federalism scheme. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. District Court case In re Polar Bear Endangered Species Act Listing, for the District of Columbia. The U.S. Fish and Wildlife Service (FWS) was directed by the Court to avoid taking necessary actions to preserve the habitat of polar bear. The FWS interpretation of the Endangered Species Act (ESA) was upheld in the decision, according to which an endangered species are those species which are currently on the brink of extinction in the wild.

The article discusses the U.S. Court of Appeal for the Ninth Circuit Court's decision in San Luis & Delta-Mendota Water Authority v. Salazar. A Commerce Clause challenge to the U.S. Endangered Species Act (ESA) was denied by the Court, and also offers brief information on cases which were referred by the Court. The constitutional standing requirements of the growers to challenge the U.S. Fish and Wildlife Service's (FWS) application of ESA section 9 was held satisfied by the Ninth Circuit.

Since the inception of the Endangered Species Act, litigants from both sides of the political spectrum have challenged the US. Fish and Wildlife Service's critical habitat designations, with development interests typically arguing to limit the designation of critical habitat and environmental interests arguing to expand it. For much of the Act's history, the Fish and Wildlife Service and the courts linked protecting critical habitat to preventing the jeopardy or extinction of a species. Yet, even after multiple circuit courts of appeals invalidated this approach in favor of connecting critical habitat to the conservation or recovery of a species, the deficient status quo of preventing harm instead of promoting recovery endures. Arizona Cattle Growers is one example. At first glance Arizona Cattle Growers' Association v. Salazar, a recently decided Ninth Circuit case about the critical habitat designation of the Mexican spotted owl, appears to be just another addition to the litigious history of the Endangered Species Act. While the case may be counted as a conclusive victory for the environmental groups that intervened to ensure the preservation of the Mexican spotted owl's critical habitat, the focus of the court's discussion on whether the Fish and Wildlife Service designated unoccupied areas as occupied critical habitat highlights a less promising aspect of the decision: the ESA's ineffectiveness at promoting species recovery instead of merely preventing their extinction. [ABSTRACT FROM AUTHOR]

It is likely that environmental groups will view the Endangered Species Act as a legal tool for forcing action on climate change. This Comment examines the standard for proving causation under section 7 and section 9 of the ESA, and analyzes potential barriers to proving that an entity has violated section 7 or section 9 by contributing to climatic changes that harm a listed species. Plaintiffs face two hurdles under section 7. Given the current models of climate change, defendants have ample evidence to argue that the present concentration of greenhouse gases is such that climate change will occur for many years. As a result, defendants can argue that past actions, not present actions, cause climate change. Furthermore, a defendant can argue that the emissions from a proposed action do not contribute significantly to climate change, and thus do not result in jeopardy. Proving causation under section 9 is also problematic. First, the sheer number of sources of greenhouse gas emissions poses a problem because of the traditional requirement that an entity be liable for harm only if its conduct is a substantial factor in bringing about the harm. Further, the persistence of greenhouse gas emissions in the atmosphere makes it even more difficult to establish that any given emitter's emissions are a substantial factor in causing climate change harm. Third, it is nearly impossible to trace the lifecycle of greenhouse gas emissions from a particular source, which renders it virtually impossible to trace particular emissions to particular climate change harms. Despite these obstacles, and in the aftermath of Massachusetts v. EPA, a plaintiff may still be able to make a reasonable argument that an action causes harm to a listed species. The question remains, however—how much greenhouse gas emissions are enough to satisfy a court's legal standard for causation under the ESA? [ABSTRACT FROM AUTHOR]