The Potential and the Pitfalls of Habitat Conservation Planning Under the Endangered Species Act

Editors\u27 Summary: The ESA is simultaneously the most popular and most hated of environmental statutes. Conservationists fervently support the ESA\u27s mission of preventing the extinction of our country\u27s fish, wildlife, and plants, but private landowners subject to ESA restrictions claim that the Act unfairly and illogically restricts the use of their valuable property. As the agency with primary responsibility for the ESA\u27s administration, the U.S. Fish and Wildlife Service (FWS) is caught between both sides. This Article examines how the FWS uses habitat conservation plans (HCPs) to balance the demands of conservationists and property owners. The Article begins by discussing the divide between conservationists and property owners. It then describes how the Republican majority in Congress, the judicial trend in takings jurisprudence, and the ESA enforcement difficulties faced by the FWS have led to the increased use of HCPs. The Article next examines the appeal, effectiveness, advantages, and disadvantages of HCPs. The Article then explains how the trend in takings jurisprudence jeopardizes the continued legality and use of HCPs. Last, the Article concludes that the FWS should push for an ESA reauthorization bill that includes certain benefits for landowners as incentives for conservation. Without such a bill, the Article argues that the HCP process will be subject to political whimsy and judicial attack