William & Mary Environmental Law and Policy Review


Scholars have come to recognize the existence of certain stealthlike provisions neatly tucked within the text of the federal Endangered Species Act ("ESA"). At the time of enactment, these provisions-if not invisible to Congress-appeared at most innocuous or insignificant. As originally written, section 7 of the ESA constitutes one such stealth provision. Inconspicuously titled "Interagency cooperation,"1 the provision seemed little more than a humble procedural hoop to agency action. Judicial statutory interpretation, however, clarified that this seemingly docile procedural requirement in fact contained a formidable substantive mandate of the Act. A second stealth provision resides in section 8a of the ESA. Modestly titled "Convention implementation,"2 the name suggests little more than administrative direction. However, closer inspection reveals that the provision potentially packs more than procedural minutia. With escalating species losses worldwide, there seems little doubt that future litigants will look to apply this provision in aid of biodiversity protection and species conservation. At such time, the federal courts will be forced to grapple, yet again, with the interpretive dilemma of an ESA stealth provision. This Article sets out an approach for how ESA stealth provisions might be interpreted to achieve principled outcomes in such situations.