The designation of critical habitat under the Endangered Species Act (ESA) can result in significant and costly consequences for landowners, industry, government, and other entities—often with little if any evidence of a commensurate benefit to the species involved. In Critical Habitat and the Challenge of Regulating Small Harms, Professor Dave Owen provides a valuable contribution to assessing the role of critical habitat during consultation on federal agency actions under ESA section 7.

Professor Dave Owen’s insightful empirical analysis of the Endangered Species Act’s (“ESA”) prohibition on destruction of critical habitat should be useful in improving the Act’s effectiveness. The title of his paper, Critical Habitat and the Challenge of Regulating Small Harms, however, is misleading in its characterization of impacts addressed in U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (collectively “the Services”) “biological opinions.” A biological opinion is the culmination of “formal” consultation.

Each year the Interior Department’s Fish & Wildlife Service (FWS) and its sister agency, the National Marine Fisheries Service (NMFS), spend a significant portion of their limited resources—and engender substantial controversy—in identifying critical habitat for various species as required by the Endangered Species Act, 16 U.S.C. §§1531-1544 (ESA). Professor Owen has done a great service in developing and analyzing empirical evidence suggesting that both the expense and controversy may be out of proportion to the actual effect of critical habitat designations.

The ESA is the most important U.S. law protecting biodiversity. The Act is designed to prevent the extinction of imperiled animal and plant species and to promote those species’ recovery. To those ends, it requires the services to list species that are in danger of extinction and to designate critical habitat for those species. That critical habitat should include both occupied and unoccupied habitat with “physical or biological features . . . essential to the conservation of the species.”

David Adelman and Ian Duncan propose to combine liability with regulation of geologic sequestration of CO2, providing a useful discussion of the relative advantages and disadvantages of each policy instrument as applied to carbon capture and sequestration (CCS). Further details of how their proposal would be implemented are essential to fully evaluating its merits and likelihood of success.

David Adelman and Ian Duncan provide a reality check for potential liability arising out of geologic sequestration in their article, "The Limits of Liability in Promoting Safe Geologic Sequestration of CO2." As a Research Scientist in the Bureau of Economic Geology at the University of Texas at Austin, Ian Duncan gives a much-needed scientific perspective on the material risks that geologic sequestration of carbon dioxide (“CO2”) actually poses, and using law and economic analysis, Professor Adelman, the Harry Reasoner Chair in Law at the University of Texas, adeptly translates how these ri

Does the brief history of carbon capture and sequestration (“CCS”) teach that we need to make wholesale changes in liability rules to make sure people do it right, or that we need favorable economic conditions within a normal liability framework to get people to do it at all? The arguments of Professors Adelman and Duncan proceed from the former notion; we submit the latter.

Carbon capture and sequestration (CCS) is promoted by a broad range of prominent stakeholders who assert avoiding climate change will be impossible without it. The importance attached to CCS is strongly associated with its scale. However, the advantage of the enormous scale of CCS is also a source of concern because it suggests that the risks are large as well.

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of the best ideas about environmental law and policy from the legal academic literature.

In A Federal Act to Promote Integrated Water Management: Is the CZMA a Useful Model?, Prof. Barton Thompson addresses the significant challenge of substantive and geographic fragmentation in water management. He proposes using the characteristics of the Coastal Zone Management Act as a blueprint for greater integration of water management across the United States.