The Hidden Rise of Efficient (De)Listing

What is the value of the gray wolf, and what might be the costs of including a tiny desert lizard on the list of endangered species? For decades, Congress has formally excluded questions about the economic value of species and the costs of their protection from agency decisions about whether a species should be listed under the Endangered Species Act. Recently, however, a number of federal legislators have sought to incorporate their own ad hoc views about the value of individual species in peril, and the costs of protecting such species, into listing decisions. This goal has been accomplished through recent legislation designed to remove specific listed species from the Endangered Species Act’s protected ranks or to exempt individual species from the Act altogether.

As this Article will show, this delisting and exemption legislation is not literally unprecedented, though it is often described as such. Nevertheless, I argue that the recent success of this legislation does represent something new in the long history of conflict over wildlife and biodiversity in the United States. Moreover, the success of this recent delisting and exemption legislation has significance far beyond its novelty: I argue that it has the potential to reshape the fundamental structure of the Endangered Species Act, chipping away at the Act’s underlying norms until the entire edifice is transformed.