Abstract

The Endangered Species Act of 1973 is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 and 2004, when the Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III.