Judicial Review of Agency Decisions - Designation of Critical Habitat or Disguised Land-Grabbing?

Lawmakers in both the U.S. and Europe appear to recognize that biodiversity and species conservation are matters of public interest. Both systems also recognize private property and free enterprise as fundamental rights. At the same time, just like fish need water and birds need trees, humans have habitat requirements too. But who decides - and on what basis - which species we can afford to make extinct and which ones are worth saving? Can we place a monetary value on biodiversity, and do gains from urban development really outweigh the costs of wildlife conservation? These are questions that courts must implicitly answer when faced with a habitat designation dispute. The present contribution draws from the case Weyerhaeuser Company v. United States Fish and Wildlife Service to examine how legal systems (i.e. the United States and Italy) on opposite sides of the Atlantic address the issue of endangered species conservation. Particular attention is given to the interpretation of the term "habitat" under the Endangered Species Act and Habitats Directive, the criteria used by public agencies to designate protected areas, and the response of private landowners to protection measures that result in a so-called "implied taking" of private property. In the end, notwithstanding formal differences between systems, it appears that American and European judges alike balance public and private interests - no matter how manifest the lawmaker's intent - to avoid excessive limits on private property and free enterprise. For Europe, the legal issues inherent to Weyerhaeuser illustrate the importance of government oversight and drafting clear provisions related to habitat conservation measures.