The U.S. Fish and Wildlife Service (“FWS”) is the federal agency in charge of “listing” most species under the Endangered Species Act (“ESA”). This legislation was passed in 1973 and explicitly stated its goal was “to protect critically imperiled species from extinction as a ‘consequence of economic growth and development untempered by adequate concern and conservation’…”
The general purpose and specific language of the ESA has been broadly construedby federal courts over the years.
Once a species is officially listed as endangered or threatened, the ESA regulations kick in and theoretically prevent any “person” (including corporations) from performing an action that constitutes a “taking” of the species – or to “harass, harm, pursue hunt, shoot, would, kill, trap, capture or collect, or to attempt to engage in such conduct”. Federal agencies must also refrain from launching projects that potentially threaten the “continued existence” of the species.