Additional "Drafting" Considerations.

Obviously, in a major piece of federal legislation like the Endangered Species Act of 1973, the meaning of the term "endanged species" represents an extremely crucial concept that lies at the very heart of the Act itself. Therefore, it is certainly reasonable to assume that Congress took great care in drafting the definition of this important term. But drafting alone does not always resolve every potential problem with legislation. To illustrate this, consider section 3(6) of the E.S.A., which specifically defines an "endangered species" as:

"any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man."

This definition appears to be fairly precise and well-drafted. An initial reading certainly doesn't suggest that it is hampered by any of the more technical "drafting" mistakes that we have been examining and which are common to so many statutes. But, look at a few of the other terms and phrases contained within this important definition.

Exactly what is meant by the term "extinction"?

Although this term itself ("extinction") is used in many places throughout the E.S.A., it is never actually defined anywhere by the Act. Should it be? Or is this simply one of those terms that is so universally understood to have a single basic meaning in common usage that no definition is even necessary? But, if the word "extinction" does not have a commonly understood meaning by itself, should we resort to sources that are outside the statute for a definintion? And, if so, just what specific sources should we use? Obviously, the scientific community might be of help in providing a technical, scientific meaning for this term. But what if the scientific community itself (as is often the case) cannot agree on a common definintion? [Consider, for example, the meaning of "species" among different members of the scientific community, as discussed further in Lesson 1, or the meaning of the term "wetlands" as discussed in Lesson 5.]

What does the addition of the phrase "throughout all or a significant portion of its range" actually mean? Does this phrase clarify the intended meaning of the word "extinction" as used in the Act, or does it make the ordinary meaning even less clear?

And, what is meant by the word "range" as used in this phrase?

Specifically, does the word "range" refer to the current geographic area in which the species may be found at present (i.e., its current range)? Or, does it refer to the traditional range in which the species is known to have once lived at some time in the past (i.e., its historical range)? Or, does the word "range" in this phrase refer to that current geographic area containing a suitable habitat in which the species is at least capable of surviving (i.e., its potential range), even though no individual species may at present be found in that area? [Consider: If one of the purposes (as stated in Section 2 of the Act) is to conserve individual species identified as being "endangered" or "threatened," together with their "critical habitats," then wouldn't it seem reasonable in many situations to attempt to restore these species to geographic areas from which they originated?] All of these potential interpretations of the term "range" are quite reasonable, although each of them is capable of producing a very different outcome. How can we know which interpretation was intended by Congress?

In determining whether a particular insect species is entitled to protection under this Act, what did Congress mean by exempting from the Act's protection only those particular insect species that present an "overwhelming and overriding risk to man"?

Are these two concepts similar (i.e., is "overwhelming" intended to be synonymous with "overriding"), or does the inclusion of the conjunctive "and" in this phrase mean that Congress intended to require the risk to man to be both "overwhelming" and "overriding"? And what about this "risk" itself? Must it involve a threat of actual physical harm to man (i.e., infection, disease, etc.), or merely any threat at all (i.e., property damage, economic harm, etc.)? And, whichever interpretation we use, precisely where is the line drawn as to an acceptable risk? Are there specific factors or criteria to be used in drawing this line? Obviously, none of these potentially critical questions are addressed by the statute.

Were these omissions purposefully made by Congress, intending to allow sufficient flexibility for these issues to be addressed if and when they should ever subsequently arise within the context of specific facts, or were these omissions merely inadvertent?

Can we make any reasonable determination as to precisely what Congress intended merely by looking at this definition of "endangered species"? Moreover, should we even try to do so by looking only at the language of the statute by itself? Or, should we refer to other sources and materials (such as the legislative history of the statute) to aid our search in finding the correct (i.e., intended) interpretation of this statutory language?

These are just a few of the many questions that typically confront legislators when they draft statutes, and the courts whenever they are called upon to interpret the meaning of such statutes, even when the statutes have been otherwise reasonably well drafted. To answer these questions, courts often engage in a process typically referred to as "statutory construction."

Proceed to Part II ("Statutory Construction") to explore this concept in greater detail.

Introduction | Part I | Part II