Sample Lesson

Drafting and Interpreting Environmental Legislation

Introduction

Part I: Drafting Statutes

Part II: Statutory Construction

Introduction

The Endangered Species Act of 1973 is perhaps the single most controversial piece of environmental legislation ever enacted by Congress. Indeed, the mere mention of it to most Americans evokes an immediate response: they either hate it intensely or they praise it profusely! Much of the controversy about this Act has been created by the way in which the courts have construed many of its terms and provisions, relying in part upon traditional "rules" of statutory interpretation, as well as the intent of Congress in enacting the Act, as gleaned from its legislative history. Therefore, you would probably not be surprised to learn that any formal study of the E.S.A. must necessarily involve considerable focus upon the legislative history of the Act in an effort to ascertain Congress' true intent in enacting its various provisions. Certainly, this Course will not disappoint those expectations. Indeed, we will spend quite a bit of time thoroughly examining the legislative history of the E.S.A. from its early predecessors to its very latest amendements. (see Lessons 2 and 3).

However, before we begin our in-depth study of the Endangered Species Act itself, there is one other important preliminary issue to be considered. Since much of the litigation surrrounding the E.S.A. during its relatively brief history has involved, at least in one way or another, the precise meaning of various terms and concepts utilized within the statute itself, students should take some time at the very outset of this course to become familiar with a few basic principles about drafting and construing legislative enactments.

This Sample Lesson is intended as a very brief introduction to two inter-related aspects that are inherent in the formal study of any major statutory enactment: (1) the selection of words used by the drafters of the legislation itself (Part I), and (2) the subsequent judicial interpretation of those same words by the courts (Part II). Quite obviously, both of these topics are far too complex to be addressed in great detail in a single introductory Lesson. Indeed, entire law courses have been devoted solely to each of these subjects. However, the purpose of this Sample Lesson is merely to provide students with some basic background as to both of these important concepts prior to our formal study of the federal Endangered Species Act, and also to acquaint students with at least a few of the most commonly utilized techniques and terminologies involved in drafting and construing environmental legislation. Since many of these concepts may be quite unfamiliar to students who encounter them for the first time, this Sample Lesson should be instructive in providing helpful background information as to these underlying principles of drafting and statutory construction in preparation for our study of the Endangered Species Act itself!