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 Copyright C 2014 by Zachary Bray. * Assistant Professor, University of Houston Law Center. I am grateful to Jamison Colburn, Brigham Daniels, Holly Doremus, Adam Gershowitz, Jim Hawkins, Tracy Hester, Julie Hill, Blake Hudson, Lee Kovarsky, Jessica Roberts, Asmara Tekle, and Kellen Zale for their helpful comments and suggestions regarding the ideas and arguments expressed here and in earlier drafts. Thanks also to Katy Stein, Scott Ehlers, Kelly Ferrell, Todd Aaron, and Sandy Hoy for their excellent research assistance. All remaining errors are my own.