Cost Consideration and the Endangered Species Act

Congress enacted the critical habitat provisions of the Endangered Species Act (ESA) to provide a powerful tool for promoting the recovery of endangered and threatened species of plants and animals. However, agency recalcitrance and constant litigation have mired its efficacy, resulting in a tangled mess that fails to effectuate the recovery goal of the ESA. This Note disentangles that mess through the lens of the ongoing circuit split over the proper methodology for consideration of costs during critical habitat designation. Concluding that the Services’ favored method, the baseline method, is superior in its faithfulness to the statutory language and the intent of Congress, this Note warns that the baseline method’s legality will continue to be undermined until the Services promulgate proper regulatory definitions to support its internal logic.