Before we begin, you need to be familiar with the following five (5) definitions:

1."Endangered Species Act" is a statute that focuses on the loss of habitat and species decline due to the expansion of urban areas with the objective of managing their geographic footprints. More specifically, the purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" (16 U.S.C. 1531).

2. "Geographic Footprint" of a city is defined as the space that it occupies (e.g., 35 square miles).

3. "Ecological Footprint" of a city is defined as its impact on the sustainability of resources, most of which are outside of the geographic area of the urban area.

4. "Green Construction" is defined as the practice of designing, constructing, and operating buildings with greater attention to energy and water efficiency, waste reduction, toxics reduction, and use of recycled and other resource-efficient construction materials (see USEPA definition).

5. "Green Infrastructure" is defined as those alternatives to traditional infrastructure techniques such as vegetative buffers, grassy swales, and permeable pavement (see USEPA definition).

The Leadership Energy and Environmental Design (LEED) Green Building Rating System of the USGBC is increasingly being integrated into local and state regulation mandates and incentives for green building techniques and green infrastructure to support the projects.  LEED, as it should, is focused on ecological footprints.

At this point you are likely wondering what the Endagnered Species Act (ESA) has anything to do with LEED and green construction . . . . well, it doesn't. But the argument is that it could and should based upon an excellent paper by Professor J.B. Ruhl of FSU College of Law.

It is quite simple. The ESA is widely regarded as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" and the "pit bull" of environmental laws, however, it is narrowly applied to the geographic footprints of our urban areas when its application to ecological footprints could significantly improve the condition of imperiled species. The argument is that ESA should be used to encourage/facilitate green construction techniques - but in my opinion, only when it can be achieved without increasing the number of regulations and/or the size of government!

Currently, the ESA has no impact on green construction or green infrastructure because: (1) it is a statute that is all about preventing harm to a species, not about creating a benefit, and (2) ESA is all about micro-scale causation (e.g., an eagle is displaced by a retail center) rather than macro-scale indirect causation associated with the ecological footprint of a larger urban area.

Therefore, there is a mismatch in scale between the micro-scale regulatory focus of ESA and the macro scale of green construction.  As Professor Ruhl states, this does not mean "that the ESA is completely out of the green construction picture."  Non-regulatory programs by the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service (NMFS) and ESA can and should be utilized to promote green construction, as follows:

1. The ESA should promulgate the knowledge that green construction is beneficial to species (e.g., promote species recovery by improving critical habitat).

2. The ESA should educate the public that green construction has the ability to mitigate the loss of critical habitats, climate change, water resource depletion (i.e., lessening the ecological footprints of cities).

3. The ESA should educate the public that the widespread use of green construction is a more cost effective practice than punishing those that cause species decline or destruction.

4. When the ESA's typical regulations are triggerd by any "harm" to a species such as a habitat displacement, FWS and NMFS should attempt to negotiate an outcome that benefits the species via green construction.

And finally, although much more complex and expensive because we are adding another layer of government management and regulation, is:

5.  The use of a conservation banking technique for voluntary green construction practices that have beneficial macro-level impacts to a species - a large developer could draw down on their "bank" of green construction credits to offset a project or part of a project that displaces species habitat.

In conclusion, Professor Ruhl adeptly makes the case that although ESA cannot directly mandate green construction, it can support actions and policies at the macro scale that mitigate species threats and lessens the ecological footprints of development.  Additionally, this author suggests that: (a) sustainable development professionals should consider alternative green construction methods as a means of cooperatively meeting ESA mandates; (b) green education organizations such as USGBC and the Institute of Green Professionals must promulgate alternate positive/green methods to meet ESA mandates and lessen our ecological footprints.

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[It is highly recommended that you read Professor Ruhl's paper in its entirety. The full citation of this paper is Ruhl, J. B.,Cities, Green Construction, and the Endangered Species Act (October 10, 2008). Virginia Environmental Law Journal, Forthcoming; FSU College of Law, Public Law Research Paper No. 324. Available at SSRN: http://ssrn.com/abstract=1282284].