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The United States District Court for the District of Massachusetts recently approved the continuing construction of a $310 million tunnel and sewage outfall project in Boston Harbor. The court held that the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, and the National Marine Fisheries Service (NMFS), did not violate the Endangered Species Act (ESA), by approving the construction of the outfall tunnel. The court specifically found that the evidence failed to show any harm to endangered species, that the environmental impact statements issued by the EPA were sufficient to establish compliance with the requirements of the ESA, and that the ESA does not require a biological opinion from the NMFS prior to the commencement of any construction. Judge Mazzone was the presiding judge, having overseen the outfall project since the court had ordered the cleanup of Boston Harbor in 1985, pursuant to the Clean Water Act. This case provides an example of the judicial confusion over the relationship between the EPA in approving such projects and the NMFS as the agency in charge of implementing the ESA. Judge Mazzone found that halting construction while the NMFS completed its biological opinion would be an "exaltation of form over substance." Clearly, his position varies substantially from that of Judge Celebrezze, who wrote the circuit court opinion in the famous case of Hill v. Tennessee Valley Authority. In that case, the court stated that the procedural and substantive requirements of the ESA should be enforced strictly because an error on the side of permissiveness could possibly result in the extinction of a species. The major substantive issue presented in this case is whether the EPA has complied with the mandate of the ESA by allowing construction to proceed without a final biological opinion from the Department of Commerce. It is surprising that the Browner court believed that such compliance was unnecessary when the consequences of proceeding in such a manner are so significant. Vast public resources are invested in these kinds of projects which require federal funding and approval. These funds are at risk if a biological opinion is issued after the onset of construction which requires the discontinuation of the project because it would endanger the existence of a species. In addition, an error in judgment can be irreversible when dealing with a species that is already at risk of extinction. In many cases there are no second chances. Therefore, the protections that Congress has given to endangered species, through the procedures set forth in the Endangered Species Act, should be strictly complied with, even when it appears that following such procedure is merely exalting form over substance. By focusing on the procedural and substantive requirements of the ESA, and exploring the various judicial interpretations of those requirements, this Note will explain why the Browner court erred in its decision. It is imperative that the judicial system mandate strict compliance with the ESAs interagency cooperation requirements. By requiring federal agencies to cooperate under set procedures, Congress affirmatively established a system of checks and balances, affording endangered species the best possible protection. Strict compliance with these procedures allows the nation to grow and develop with minimal economic loss, while providing endangered species the protection that scientific and technological advancements can offer.



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