Flies, spiders, toads, wolves, and the constitutionality of the Endangered Species Act's take provision.

• Author: Blumm, Michael C.

1. INTRODUCTION II. THE REHNQUIST COURT'S RESURRECTION OF "OUR FEDERALISM" A. United States v. Lopez: New Limits on the Commerce Clause B. United States v. Morrison: Reinforcing the New Commerce Clause Limits C. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers: Commerce Clause Restrictions as Statutory Interpretation III. THE CONSTITUTIONALITY OF THE ESA's TAKE PROVISION A. The Delhi Sands Flower-Loving Fly and the Biodiversity Defense B. The Commercial Effects of Red Wolves and the Importance of a Comprehensive Scheme C. The Texas Cave Species and the Comprehensive Scheme Principle (Again) D. The Arroyo Southwestern Toad and Commercial Land Development IV. WOULD THE SUPREME COURT UPHOLD THE TAKE REGULATION? A. The Commercial Nexus 1. The Commercial Effects of Listed Species 2. The Commercial Nature of Regulated Take 3. The Commercial Nature of the ESA's Comprehensive Scheme B. Statutory Links to Interstate Commerce C. The Proper Scope of Aggregation and the Attenuation Principle V. CONCLUSION VI. EPILOGUE I. INTRODUCTION

   The Endangered Species Act (ESA) (1) has become the bete noir of property rights activists, states' rights enthusiasts, and the neo-conservative crowd. The Act has been pilloried as inflexible, draconian, and environmental overkill. (2) A poster child for congressional deregulators, the ESA has become a constant target of legislative reformers. (3)

   But the ESA has remained surprisingly impervious to legislative amendment. And in truth, the ESA is actually not nearly as inflexible or draconian as its critics complain. The Clinton Administration made several administrative changes that made implementation of the statute quite economically sensitive. (4) Moreover, a close study of on-the-ground implementation would reveal that biological consultation, required of federal activities adversely affecting listed species, (5) is frequently concerned with balancing economic costs against species protection. (6) Nevertheless, the calls for ESA reform continue unabated. (7)

   The ESA's critics certainly have not limited their attacks on the statute to the congressional arena, however. Litigation aimed at disabling various aspects of ESA implementation has been commonplace as well. (8) In the most celebrated case, advocates of increased timber harvest on public land challenged the application of the statute's take provision to habitat destruction. (9) The ESA's take provision is especially controversial because it is not limited to restricting the activities of the federal government but includes limits on private property as well. (10) But a divided Supreme Court surprisingly upheld the challenged regulation in 1995. (11) As a result, ESA critics shifted their focus from challenging the administrative interpretation of the statute to challenging its constitutionality.

   As the Rehnquist Court has narrowed the basis for federal Commerce Clause regulation, (12) the ESA has become vulnerable to constitutional challenge because the basis for species protection is not exclusively commercial in nature, but is instead a mixture of philosophy, morality, aesthetics, and utility. (13) Although the statute is widely defended on moral and aesthetic grounds, (14) the utilitarian argument for protecting endangered species is actually quite strong if understood to include more than just the commercial, medicinal, or recreational uses of particular species and to encompass the role of species as indicators of the health of ecosystems necessary for human health and welfare. (15) However, this "canary-in-the-coal-mine" function is often subsumed by moral and aesthetic claims for species protection, making it seem that the ESA fulfills only noncommercial functions. (16) This perception has encouraged ESA opponents to mount constitutional challenges to the application of the Act's take provision against the activities of various private landowners.

   In a series of cases, discussed in Section III of this Article, these opponents alleged that the ESA's take provision was an unconstitutional exercise of the Commerce Clause power. Their efforts have yet to bear fruit, however, as all four appellate decisions--from three different courts of appeals--rejected their contentions. (17) But two of the decisions drew dissents from well-known "conservative" judges. (18) Moreover, the circuits have been unable to agree as to why the ESA's take provision is constitutional, supplying several different rationales. (19) Thus, Supreme Court review of the issue is not out of the question, despite the lack of a circuit split, particularly in this era in which the Court has revolutionized the constitutional federal-state balance. Referring to this revolution as a reinvigoration of "Our Federalism," (20) the Court has struck down federal legislation for exceeding the Commerce Clause authority for the first time since the New Deal. (21)

   In this Article, we consider the fate of the ESA's take provision in this new judicial era. Section II examines the federalism revolution created by the Rehnquist Court over the past decade. Section III analyzes the four circuit court decisions on the constitutionality of the ESA's take provision. Section IV then considers the likelihood of the various rationales adopted by the circuits being accepted by the Rehnquist Court, focusing especially on the concurrence of Justice Kennedy in United States v. Lopez (Lopez), (22) the case that initiated the Court's modern federalism revolution.

   The Article concludes that the Court would have little difficulty in upholding the Commerce Clause basis for the ESA where either the particular species or regulated take has substantial effects on commerce. However, these justifications would leave many species and some kinds of take outside the permissible reach of the ESA. A justification that would uphold the take regulation with respect to all listed species was provided by both the Fourth and Fifth Circuits, which ruled that the commerce necessary to sustain ESA regulation was in the statute's comprehensive economic regulatory scheme. We think that, while the matter is certainly not free from doubt, the Court would sustain this approach, since Justice Kennedy has indicated that the purpose or design of a statute can supply the requisite commerce nexus, (23) and regulation of wildlife or endangered species is certainly not an area traditionally of exclusive state concern. (24)

2. THE REHNQUIST COURT'S RESURRECTION OF "OUR FEDERALISM"

   Until 1995, there was little question that the ESA was constitutional. The statutory findings stated that "economic growth and development untempered by adequate concern and conservation" were a primary cause of species extinctions, (25) and the ESA's legislative history indicated that "the pressures of trade" threatened fish, wildlife, and plants, (26) seeming to place the Act squarely within Congress's Commerce Clause power. (27) The Supreme Court had not struck down a federal statute as being in excess of the Commerce Clause since the New Deal, (28) sustaining regulation of intrastate coal mining, (29) intrastate credit transactions, (30) restaurants using interstate supplies, (31) inns catering to interstate guests, (32) and even production of wheat consumed on-farm. (33) In 1981, the Court upheld, against a Commerce Clause attack, the Surface Mining Control and Reclamation Act, (34) on the ground that Congress could rationally conclude that the regulation of private land strip mining was necessary to control adverse effects on interstate commerce due to "air or water pollution, or other environmental hazards." (35) Whatever limits there were on Commerce Clause authority seemed theoretical, mostly because the Court as long ago as 1942 had sanctioned "aggregation" of economic effects to produce an effect on interstate commerce, meaning that the cumulative effects of many others similarly situated may be accumulated to produce an effect on interstate commerce. (36) There were even reputable academic suggestions that the Court completely eschew Commerce Clause review of federal statures. (37)

   The world changed abruptly in 1995, however, when the Court decided that the Gun-Free School Zones Act of 1990 (GFSZA) (38) exceeded the Commerce Clause power.

   1. United States v. Lopez: New Limits on the Commerce Clause

      Congress enacted and President George H.W. Bush signed the GFSZA in 1990. (39) The Act made it a federal crime to knowingly possess a firearm in a school zone, which the stature defined as "within a distance of 1,000 feet from the grounds of a public, parochial, or private school." (40) In 1992, a senior at a San Antonio, Texas high school brought a concealed .38 caliber handgun to school and was charged with violating the GFSZA. (41) After he was indicted, he moved to dismiss the charges on the ground that the GFSZA violated the Commerce Clause, but the district court denied his motion, ruling that the business of education affects interstate commerce. (42) The defendant was subsequently convicted and sentenced to six months in jail and two years supervised release. (43) He appealed to the Fifth Circuit, which reversed the conviction and struck down the statute, holding that the GFSZA had insufficient congressional findings and legislative history to support Commerce Clause authority. (44) The Supreme Court granted certiorari and affirmed the Fifth Circuit in Lopez, its first decision striking down a federal statute since the New Deal. (45)

      Chief Justice Rehnquist wrote the majority opinion for a sharply divided court, which split five to four. (46) He began by announcing "first principles" of federalism: the Constitution's granting the federal government powers that are "few and defined"--in contrast to the authorities of the states which are "numerous and indefinite"--in order to protect fundamental liberties and reduce the risk of tyranny. (47) Retracing the Court's Commerce Clause...