Since it was enacted in 1973, the ESA has been one of the most celebrated environmental laws, but also one of the most reviled. Industry groups argue that the consultation process frequently delays and sometimes halts much needed energy, transportation, water supply, and other projects and often dramatically increases project costs. Environmentalists disagree with this view, contending that the process actually rarely stops anything and that the FWS lacks the backbone to impose meaningful conservation requirements that would be costly or inconvenient for the project developer. In 2015, the authors decided to delve deeply into ESA §7 to analyze how it actually works in practice and to assess the validity of various parties’ claims about the consultation process. They focused on the impact of §7 consultation on energy development on public land. This Comment is an overview of that study and key findings. In a nutshell, the authors learned that only a small fraction of energy projects developed on public land are reviewed at all under §7. When it applies, the consultation process appears to go quickly and smoothly for the vast majority of oil and gas projects, for a variety of reasons. On the other hand, consultation on solar energy and wind energy projects tends to be lengthy and complicated.The Kay Bailey Hutchison Center for Energy, Law, and Busines
