J.B. Ruhl

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Southwestern Law Journal

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To many, the ESA is the epitome of an anti-growth agenda, seemingly used as a pretext for stopping development rather than for the ostensible purpose of species protection. To its staunch supporters, however, the ESA represents one of the purest statements of the environmentalist ethic and a powerful weapon against the ravaging of spaceship Earth. To those who work with the ESA on a regular basis, it, like many other environmental laws, has its good and bad points ... This Article does not attempt to resolve all the compelling questions posed by the conflicting policy objectives associated with the ESA. Rather, the Article focuses on an important emerging issue - the concept of a regional habitat conservation plan (RHCP) - that perhaps more than any other issue under the ESA today finds those conflicting policies in a head-on collision ... Part I of this Article provides an overview of the ESA's basic regulatory structure, including the designation of protected species, the resolution of federal-action and non-federal projects which may affect listed species, and the scope of enforcement authority ... Part II discusses the impetus for and the history of the RHCP phenomenon, showing it to be an inevitable response to the shortcomings of the ESA ... Part III of the Article examines the problems faced and created by the RHCP approach as it has evolved. The Article concludes that the current legal bases for, and manner of implementation of, the RHCP approach seem destined to undermine its effectiveness. This thesis is tested in Part IV by using a case study of the ongoing attempts to resolve a variety of endangered species issues in the Hill Country terrain around Austin, Texas ... Finally, Part V of this Article recommends actions at the legislative and administrative levels which could ameliorate these problems and help save the ESA from selfdestructing under the pressures of its legal and practical limitations.

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