ON BEHALF OF THE ENDANGERED SPECIES ACT AND THE COMMERCE CLAUSE

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 10A
ON BEHALF OF THE ENDANGERED SPECIES ACT AND THE COMMERCE CLAUSE
James R. May
Distinguished Professor of Law
Director
Global Environmental and Natural Resources Law Institute
Widener University Delaware Law School
Wilmington, DE
Chief Sustainability Officer
Widener University
Chester, PA

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JAMES R. MAY is a Distinguished Professor of Law and Director of the Global Environmental and Natural Resources Law Institute, at Delaware Law School of Widener University in Wilmington, Delaware, where he also serves as an Adjunct Professor of Graduate Engineering, and founded and co-chairs a program on marine policy. He has also founded or co-founded two non-profit environmental organizations (the Mid-Atlantic and the Eastern Environmental Law Centers), and has litigated more than 200 public interest environmental claims, including nearly every case in the Mid-Atlantic (except in DC) to establish programs to implement TMDLs, achieve water quality standards, and engage in water quality planning, as well as comply with corresponding attributes of the Endangered Species Act. He is the author of four books, PRINCIPLES OF CONSTITUTIONAL ENVIRONMENTAL LAW; GLOBAL ENVIRONMENTAL CONSTITUTIONALISM (with Erin Daly); SHALE GAS AND SUSTAINABILITY (with John Dernbach, forthcoming); and ENVIRONMENTAL CONSTIUTIONALISM IS CONTEXT (with Erin Daly, forthcoming). He has also authored course materials on MODERN ADMINISTRATIVE LAW, and MODERN CONSTITUTIONAL LAW (with Erin Daly). He is the author or co-author of more than 80 articles and book chapters relating to environmental, water quality, or constitutional law, and several amicus briefs to the U.S. Supreme Court and U.S. federal courts of appeal. May is a Member of Faculty to the National Judicial College, and a Fellow of the American College of Environmental Lawyers, for whom he has served as a delegate to China to regarding environmental law. May has also served as a consultant to the U.S. Embassy on legal education in the Philippines, and to the Hungarian Embassy on constitutional reform in Hungary.

INTRODUCTION

Human-induced loss of biodiversity - including the slow motion extirpation of plant and animal species via hunting, poaching, illegal trade, habitat disruption, and climate change - is an intractable domestic and international problem, arguably the fifth great "epoch" in species transformation that the Earth has ever experienced. What to do.

Legislate, at least. Warts and all, the federal Endangered Species Act (ESA) is the most effective natural resources statute the nation, and perhaps the world, has seen. It has been instrumental in conserving innumerable species threatened with extinction, and with protecting critical habitat. It has had other salutatory effects, including energizing the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Services (NMFS), providing means to list and conserve listed threatened and endangered species, providing the federal government with funding and authority to appropriate land to protect species, instituting a program to assist states with species protection, and implementing international accords concerning trade in protected species. Fittingly if not perhaps a bit unfair to some canines that have fallen into a degree of ill-repute, the ESA has been called the "pit bull" of federal natural resources law.¹

The great question of the day is whether the constitution gives Congress authority to conserve endangered species as provided in the ESA. Part I outlines the ESA and places it into constitutional perspective, maintaining that Congress was well within

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jurisprudential authority to enact the law. Part II then turns to the how the jurisprudence of the Commerce Clause has, urn, evolved so as to raise the issue of whether the ESA comports with it. Part III then maintains that while constitutional text and jurisprudence is sufficiently capacious to accommodate the ESA, the nation's dual-sovereign constitutional structure and relatively recent jurisprudence makes for interesting conversation, to say the least.

I. ESA in Constitutional Perspective

The federal Endangered Species Act (ESA) is a powerhouse piece of legislation. Congress enacted the original federal "Endangered Species Act" in 1966. The 1966 ESA had three principal attributes. First, it charged the Secretary of Interior with listing the names of threatened "native fish and wildlife." Second, it allowed the Secretary to purchase land to conserve, protect or restore "selected species." Last, it required all federal agencies both to protect these species and "insofar as is practicable and consistent with the[ir] primary purposes," "preserve the habitats of such threatened species on lands under their jurisdiction." And even on these lands, the Secretary could permit the hunting and fishing of endangered species. Accordingly, given its limited reach and scope, the 1966 ESA did little to protect species from extinction. In 1969, Congress turned outward by amending the ESA to prohibit the importation of species "threatened with worldwide extinction" and to ban on the transportation and sale of wildlife taken in violation of any federal, state, or foreign law.

A U.S. - led multilateral effort to address trade in wild and exotic species eventually contributed to a strengthening of the ESA. In 1972, the U.S. State Department under the Nixon Administration (again, who would have thought?) helped to negotiate the International Convention on Trade in Threatened and Endangered Species (CITES). The U.S. Senate ratified CITES nearly unanimously. Congress then turned to enacting domestic legislation to implement it.

What happened next was extraordinary. In 1973 the U.S. House of Representatives and the U.S. Senate negotiated and passed with a multifaceted and intricate statute to "conserve" threatened and endangered species and their habitat, still known as the "Endangered Species Act." Simply, Congress acted as if facing a conservation crisis:

"The dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of 1973] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings and much debate was devoted to the biological problem of extinction. Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear." ²

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The purpose of the ESA is to "conserve" some of the last remaining plants and animals on the planet, the value of which as the ESA's framers and the U.S. Supreme Court has noted are "incalculable." As the Court noted in TVA v. Hill,

"The legislative proceedings in 1973 are, in fact, replete with expressions of concern over the risk that might lie in the loss of any endangered species.23 Typifying these sentiments is the Report of the House Committee on Merchant Marine and Fisheries on H.R. 37, a bill which contained the essential features of the subsequently enacted Act of 1973; in explaining the need for the legislation, the Report stated:

"As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their--and our own--genetic heritage.

"The value of this genetic heritage is, quite literally, incalculable."

"The institutionalization of that caution lies at the heart of H.R. 37 . ..." H.R.Rep.No.93-412, pp. 4-5 (1973). (Emphasis added.)

As the examples cited here demonstrate, Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet."

The ESA's findings, purposes and policies are its own best evidence of what it means and aspires to do, providing:

16 USCA § 1531 (ESA Section 2): Congressional findings and declaration of purposes and policy

(a) Findings

The Congress finds and declares that --

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to--

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;

(D) the International Convention for the Northwest Atlantic Fisheries;

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(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.

(b) Purposes

The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be...