THE ENDANGERED SPECIES ACT AND THE COMMERCE CLAUSE: A TANGENTIAL RELATIONSHIP
| Jurisdiction | United States |
(Nov 2015)
THE ENDANGERED SPECIES ACT AND THE COMMERCE CLAUSE: A TANGENTIAL RELATIONSHIP
Senior Attorney
Pacific Legal Foundation
Sacramento, CA
Principal Attorney
Sacramento, California
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DAMIEN M. SCHIFF is Principal Attorney at the Pacific Legal Foundation in Sacramento, California. Pacific Legal Foundation is the nation's premier public interest organization committed to litigating pro bono for property rights. He was previously Counsel in the Environment, Land Use, and Natural Resources Group of Alston & Bird LLP in Sacramento. An experienced environmental law litigator, in 2012, he argued and won Sackett v. U.S. Environmental Protection Agency, a groundbreaking decision in which the United States Supreme Court upheld the right of project applicants to challenge Clean Water Act compliance orders issued by the Environmental Protection Agency. For that victory, California Lawyer Magazine recognized Damien as an Attorney of the Year in Appellate Law. In addition to the Clean Water Act, Damien's practice focuses on enforcement and permitting issues arising under the Endangered Species Act. Damien has litigated or filed briefs in many cases arising under that Act, concerning, among other issues, the listing and delisting of species, the designation of critical habitat, and interagency consultation. Earlier this year, Damien filed an amicus curiae brief on behalf of several United States Senators and Representatives in People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service, a case pending in the Tenth Circuit Court of Appeals that challenges the constitutional authority of the Fish and Wildlife Service to regulate intrastate, noncommercial species. Damien has written regularly on endangered species and other environmental law matters for a variety of journals, including Environs, the Journal of Land, Resources, and Environmental Law, and the Missouri Environmental Law and Policy Review. He has appeared on national television and radio and has been quoted in news outlets such as The Economist, The New York Times, The Washington Post, and The Wall Street Journal.
INTRODUCTION
The United States Constitution creates a federal government of limited powers.1 That government may exercise only those few powers expressly granted to it.2 Unfortunately, over the course of the Nation's history, the Supreme Court has construed the Constitution's grant of powers--in particular the power to "regulate Commerce . . . among the several States"3 --beyond the Framers' intent.4 Nevertheless, in interpreting the Commerce Clause, the Supreme Court has been careful not to "obliterate the distinction between what is national and what is local."5 The Court therefore has cautioned that federal regulation under the Commerce Clause cannot be sustained if the rationale supporting that regulation has no limiting principle,6 or if it relies upon a line of reasoning that would "pile inference upon inference" to connect the regulated activity to interstate commerce.7
Employing these principles, the Supreme Court has held that, under the Commerce Clause (and in conjunction with the Necessary and Proper Clause8 ), the federal government may regulate (i) the channels of interstate commerce, (ii) the instrumentalities of, or persons or things in, interstate commerce, and (iii) economic activities that, in the aggregate, have a substantial effect on interstate commerce, as well as (iv) certain non-economic activities, the regulation of which is essential to vindicating a larger regulation of interstate economic activity.9
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Enter the Endangered Species Act,10 long considered to be the strongest and most potent environmental law in the United States Code.11 The United States Fish and Wildlife Service (the federal agency with chief enforcement responsibility for the Act),12 the environmental community, as well as the lower federal courts, have long held that, pursuant to the Endangered Species Act, federal regulation of protected species--wherever located and whatever their connection to commerce--is proper under the Commerce Clause. Two arguments have been prominent. First, the Act's supporters assert that the law's key regulatory provision--the prohibition on the "take" of protected species13 --regulates a class of economic activity, the effects of which (when aggregated) substantially affect interstate commerce. Second, de-emphasizing commercial connections, the Act's defenders have characterized the law itself as a comprehensive regulatory scheme bearing a substantial relation to commerce, which would be undercut if the regulation of the take of noncommercial species were forbidden. Hence, according to these advocates, regulation of such species would be necessary and proper to the federal government's regulation of commercial species.
Neither argument is convincing. The take of species is, at least as the Act defines it, a categorically noneconomic activity. And far from being a market regulatory scheme, the Endangered Species Act is a conservation statute which is (at best) merely tangentially directed toward economic interests. Hence, the regulation of the take of a protected species is constitutionally justified under the Commerce Clause only when the species happens to be in the channels of commerce, or is itself a commodity.
I. AN ENDANGERED SPECIES BACKGROUND14
A. Listing a Species
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To be protected under the Endangered Species Act, a species must be designated as either "endangered" or "threatened."15 An endangered species is "any species which is in danger of extinction throughout all or a significant portion of its range."16 A threatened species is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."17 Listing determinations are made according to five statutory factors: habitat and range loss, overutilization, disease and predation, inadequacy of existing regulatory mechanisms, and a catch-all for any other factor affecting a species' continued existence.18 The listing determination must be made "solely on the basis of the best scientific and commercial data available."19
As noted above, the Act's most important prohibition is its proscription of the unpermitted "take" of endangered fish and wildlife.20 The Act defines "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."21 That definition has been expanded by regulation to include some instances of habitat destruction.22 Also by regulation, the "take" prohibition has been extended to all fish and wildlife listed as threatened.23 The Act does not prohibit the take of listed plants, although it does proscribe the destruction of protected plants on federal property, among other activities.24
B. The Designation of "Critical Habitat"
Under Section 4 of Endangered Species Act, the Service must, concurrent with listing, designate a species' critical habitat "to the maximum extent prudent and determinable."25 The Act defines critical habitat to include those areas of a species' occupied range that contain the features essential to the conservation of the species, as
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well as those areas outside a species range that are essential to the species' conservation.26 As with listing, critical habitat designations and amendments thereto must be based on the best available data.27 Unlike listing,28 however, the Service must take into account economic impacts when designating critical habitat.29 Moreover, the Service is authorized to exclude areas from critical habitat designations if it determines that the benefits (including economic) of exclusion outweigh the benefits of inclusion.30
C. Consultation
Federal agencies are obligated to ensure that the actions they authorize, fund, or carry out are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species."31 Agencies fulfill this duty through consultation with the Service.32 This consultation process often ends in the drafting of a biological opinion, which explains how the anticipated federal action will affect a listed species or its critical habitat.33 If the Service determines that jeopardy to the species or adverse modification of its critical habitat will likely result from the contemplated action, then the Service may suggest "reasonable and prudent alternatives" to the proposed action that would avoid jeopardy or adverse modification.34 If the Service determines that the proposed federal action will not jeopardize the species' existence or adversely modify its critical habitat (either as proposed or by following suggested reasonable and prudent alternatives), the Service may issue an incidental take statement which authorizes what might otherwise violate the Act's take prohibition,35 The incidental take statement, however, must specify: (1) the impact on the species of the incidental take; (2) the reasonable and prudent measures to minimize the impact; and (3) the terms and conditions with which the agency or the private-party applicant must comply.36
D. Prohibited Acts and Penalties
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Undoubtedly one reason for the Endangered Species Act's reputation as the "pit bull" of environmental law37 is its generally unbending prohibitions and stiff penalties. As previously noted, the Act proscribes a number of activities with respect to endangered fish and wildlife, including their taking, importation, sale, or unauthorized possession, delivery, carrying, or transportation.38 Similarly, the Act proscribes a number of actions with respect to endangered plants.39 By regulation, the Service has applied the Section 9 take prohibition to all fish and...
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