1. The following are three roadblocks found in Section 7 of the ESA. Which do you think are the most effective as roadblocks? Why?
• That agencies “…shall carry out programs for the conservation of endangered species”
•That agency actions “…shall not jeopardize the continued existence of endangered species”
• That agency actions “shall not … result in the destruction or modification of critical habitat”
2. Based on the strategies of agency and industry of which you have now become familiar, what do think would be different if “shall” had been written as “may”? Would the snail darter have reached the Supreme Court? Would endangered species protection today be taken seriously by agencies and industry? Do you think Tellico Dam would have been operative for the last 30 years with an industrial and residential city near the valley, and the snail darter extinct?
3. Thinking along the same lines, what if the language had stated: “in so far as practicable and consistent with agency purposes” rather than “shall not…”. Do you think the ESA would be as effective? Why or why not?
4. If you were re-drafting the ESA in today’s world, what would you say to an eco-pragmatist that wanted to insert the type of language noted above into the ESA? Based on what you have learned, do you now think the ESA is most effective if left as a roadblock statute? Or do you think it can be more effective from an eco-pragmatic point of view? Explain.
5. Justice Rehnquist wrote a scathing dissent in TVA v. Hill arguing that trial judges should have equitable discretion to override statutory violations allowing projects to go on. Do you think the Tellico Dam would be operative today had Justice Rehnquist presided over the TVA v. Hill case? How different do you think endangered species protection would be today had that been the case?
6. Section 7 is a clear roadblock statute. But it’s not clear if that was known by those that drafted it or whether it was only realized after it became law. Would it change your view of Section 7 if you learned that the roadblock was intentionally obscured by those that drafted it? If Section 7 – one of the most remarkable, revolutionary, world respected, and powerful pieces of United States legislation -- had never been passed without the roadblock camouflaged, what does that say about Congress and our legislative process? What does it say about the ethics of the provisions’ drafters that may have slipped it into law?
7. Opponents of environmental protection regularly slip exceptions, attach riders, develop undercutting amendments, and use other “unethical” means to counter regulation. Is this a good enough excuse to “accept” the ESA’s hidden roadblocks as part of the natural legislative process? Explain your thoughts on these issues.
8. If laws are designed to protect society, how does the ESA act in that role? Explain.