Licensed To Kill: A Defense of Vicarious Liability Under the Endangered Species Act


The Endangered Species Act (ESA) makes it illegal to “take” an endangered and threatened species by killing, harming, or harassing the animal. Although the classic example of a take is an individual poacher shooting an endangered species, these protected species are also harmed by larger–scale policies and programs. In several court cases, local and state governments have been held vicariously liable for the take of endangered species when their policies or actions caused third parties to commit a take.

The vicarious liability theory, as applied to the ESA, is controversial and has been criticized by numerous scholars. This Note argues that a limited version of the vicarious liability theory is consistent with the text of the ESA and plays an essential role in fulfilling the promise of the ESA’s take prohibition. As a case study, this Note examines how the vicarious liability theory could be used to hold the state of Louisiana liable for licensing shrimping gear that causes the take of endangered and threatened sea turtles. As illustrated by the Louisiana example, the acceptance of a narrowly construed vicarious liability theory would protect endangered species without placing an unreasonable or unconstitutional burden on state and local governments.