The scope of federal authority under the Endangered Species Act: implications for local land use planning.

• Author: Fleming, Jacalyn R.

"[E]xamination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." (1)

INTRODUCTION

The federalization of land use controls (2) is largely a product of the environmental movement that accelerated in the 1970s and that resulted in many federal environmental laws effectively limiting the scope of local police powers. (3) One example of this is the Endangered Species Act (ESA). (4) Prior to the 1973 Act, protection for endangered species initially focused on federal agencies and federal lands, but when this proved insufficient the law was expanded to prohibit the taking of all endangered species by any person. (5) Presently, the prohibition on the taking of endangered species implicates local land use planning and development because the definition of taking now includes "`significant habitat modification or degradation that actually kills or injures wildlife.'" (6)

While Congress has a limited ability to regulate the conduct of the states directly, (7) a valid act of Congress is the supreme law of the land and preempts state and local laws and regulations that conflict. (8) Consequently, the courts have regularly rejected legal challenges seeking to invalidate federal laws or regulations that, in effect, preempt local land use controls. (9) For example, in 1981 the Supreme Court announced that the fact that many federal environmental regulations may happen to "pre-empt particular exercises of state police power," including the power to control land use, was simply irrelevant. (10)

Despite this history of deference to Congress, however, the Supreme Court is currently taking a hard look at whether the federal law in question is within Congress's constitutionally delegated authority. (11) Yet in the midst of this states' rights movement, one should remember that there is a need for a national policy in key areas beyond national defense. For instance, federal authority is needed for issues that require a centralized solution due to their national significance.

Environmental regulation is one such area. The centralization of environmental laws has numerous benefits, including uniformity and an increase in the pool of resources available to resolve the problem. (12) Similarly, federal laws are needed to provide minimum standards because states may face strong disincentives to enact or enforce environmental laws. (13) For example, states may focus on the monetary benefits from the added taxes and jobs gained from allowing development while ignoring the less obvious environmental effects such as cumulative impacts. (14) In turn, this may result in a "race to the bottom," where each local jurisdiction chooses short-term economic gain over the long-term health of the nation and the planet. (15)

This comment focuses on the scope of the federal government's power to protect endangered species, including the power to preempt local land use decision-making and limit development of private property. Part I introduces the key parts of the Endangered Species Act that apply to private land and provides an early example of how the Endangered Species Act and its requirement for a habitat conservation plan was applied to a particular private development. (16) The relationship between the historically local nature of land use planning and regulation under the Endangered Species Act is also introduced. (17) Part II considers the constitutional limits of the federal government to regulate under the Commerce Clause generally, and also applies the Commerce Clause analysis to the regulation of endangered species. (18) Part III addresses the treaty power and its potential for providing national power to affect local land use, and briefly discusses federal authority under the Property Clause and preemption analysis. (19) Part IV considers other potential constitutional limits on the federalization of land use control including the Tenth Amendment and the takings clause. (20) In addition, the contracting authority of the government is briefly addressed as a potential limit on how habitat conservation plans are implemented. (21) Despite the limits on the federally delegated authority under the United States Constitution, however, the consensus seems to be that protection of endangered species throughout the country is generally within the scope of the federal government's power. Nevertheless, there are specific limitations to consider, which also will be discussed herein.

1. PROTECTING ENDANGERED SPECIES

   1. The Endangered Species Act

      Statutory authority permitting incidental takings under section 10(a) of the Endangered Species Act of 1973 (ESA) (22) was added in 1982 to mitigate the largely unqualified prohibition on taking endangered species found in the 1973 Act. (23) Now, any person is prohibited from taking endangered species without first obtaining a permit from the Secretary, in accordance with the requirements detailed in section 9 of the ESA. (24) Under those requirements, the Secretary may not issue a permit unless the applicant submits a conservation plan that meets the criteria listed in the Act. (25) Because private landowners harboring endangered species on their land must often alter their plans to comply with the statute and avoid civil and criminal penalties, the ESA has been "seen as among the growing ways in which the federal government controls private land use, a function traditionally left to local governments." (26)

      The 1982 amendments authorizing incidental take permits were modeled after the first habitat conservation plan (HCP) which was developed for the conservation of the habitats of several endangered species on more than 3000 acres just south of San Francisco, California, in the San Bruno Mountain area. (27) The San Bruno story involved what is now a common scenario for California developers: a development company finding itself compelled to negotiate with three levels of government at once. (28)

      The San Bruno Mountain developers originally proposed more than 7650 residential units and two million square feet of commercial space. (29) Responding to pressure from local environmental groups, the County Board adopted a general plan amendment in 1976 that allowed only 2235 residential units, reduced the amount of commercial space, and set the remainder aside as open space. (30) Unhappy with this result, the developer initiated litigation against the county, which settled in 1980. (31) Under the settlement, the developer sold 1100 acres along the main ridgeline to the county for $6.2 million and donated an additional 546 ridgeline acres. (32) This settlement was only the beginning for the developers.

      In 1979, the State of California negotiated another deal with the same developers, focusing on added conservation in an area of rolling hills called the Saddle Area. This deal, which included the state's purchase of 42 acres for $5 million and the developer's donation of an additional 256 acres to the state for a park, resulted in the approval for construction of 47 units. (33) The county and state negotiation process resulted in approximately one-third of the area remaining for development purposes. (34)

      After the agreement was reached with the state, the U.S. Fish and Wildlife Service (FWS) learned that a species federally-listed as endangered, the Mission Blue Butterfly, inhabited the area and could be impacted by the proposed development. (35) In 1980, a steering committee was formed to develop a plan that would protect the butterfly and also allow some development. (36) Representatives of the development company, nearby landowners, the county, nearby cities, environmentalists, and state and federal wildlife agencies constituted the steering committee. (37) After two years of studies and negotiation, an HCP was adopted that required an additional 793 acres be dedicated to open space. (38) In addition, landowners were required to contribute $60,000 per year for management. (39) Only the environmental group opposed the final plan. (40) The FWS issued the final take permit after completing an Environmental Assessment and issuing a Finding of No Significant Impact under the National Environmental Policy Act (NEPA). (41)

   2. Traditional State and Local Powers

      The ESA's federal regulation of private land stands in stark contrast to the historically local nature of land use planning and zoning in the United States. For example, in Gibbs v. Babbitt, (42) the plaintiffs argued that a regulation regarding endangered species on private land "intrude[d] on the state's traditional police power to regulate local land use." (43) The Fourth Circuit acknowledged the broad powers possessed by state and local governments to regulate land use under Euclid v. Amber Realty Co., (44) but also recognized that Congress can trump that authority for environmental conservation purposes. (45) The ESA's regulation of endangered species, including the prohibition against significant habitat modification on private land, at least partially trumps local authority. (46) The court noted, however, that the ESA did not "simply sweep away the role of the states"; rather it adopted a "cooperative federalism" which sought to "involve ... states in the conservation effort." (47)

      Within this spirit of cooperation, the Gibbs majority concluded its opinion with a strong response to the dissent's willingness to overturn the regulation of the endangered species at issue. (48) The majority argued that although recent Supreme Court precedents limit federal authority to adopt laws implicating state power:

      [The Court's precedents] did not transform the [judicial] reviewing function from a shield protecting state activities into a sword dismembering a long recognized federal one. It is as threatening to federalism for courts to erode the historic national role over scarce resource conservation as it is for Congress to usurp traditional...