Turning the Endangered Species Act inside out?

• Author: Mathews, Jud

Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003).

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, (1) as applied to species found only in single states, against Commerce Clause challenges. (2) Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings." The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation is not endangered species, but the commercial development that threatens them, which plainly falls within Congress's powers to regulate under the Commerce Clause. The two courts saved the threatened arroyo toads (3) and subterranean invertebrates, (4) but they read the Endangered Species Act as if it were two different statutes.

This curious divergence can only be understood in light of the unsettled state of Commerce Clause jurisprudence following United States v. Lopez (5) and United States v. Morrison. (6) Those two decisions upended fifty years of conventional wisdom about the limits on Congress's power under the Commerce Clause--namely, that there were effectively none (7)--and left lower courts with an uncertain new framework to apply. Of the two cases considered here, Rancho Viejo represents the abler attempt to square the ESA with the new Commerce Clause doctrine, because its analysis is more objective than GDF Realty's and more clearly satisfies the strictures of Lopez and Morrison. But like GDF Realty, Rancho Viejo must present the ESA's impact on commerce, which is peripheral in the statutory design, as the Act's core object--must turn the ESA "inside out," so to speak--in order to justify it under the Commerce Clause. This cramped conception of the statute does not convincingly justify all of its applications. The shortcomings of Rancho Viejo do not represent sloppiness on the part of the D.C. Circuit, however. Instead, they reflect the failure of the Lopez and Morrison framework to meet the Supreme Court's stated aspiration to distinguish "between what is truly national and what is truly local." (8)

I

The story starts with Lopez and Morrison. In 1995, the Lopez Court invalidated a federal statute on Commerce Clause grounds for the first time in over fifty years. The Court gave four reasons for flunking the Gun-Free School Zones Act of 1990: (9) The activity it regulated--gun possession--was not economic activity, the statute lacked a jurisdictional element, there were no legislative findings regarding interstate commerce effects, and the impact of the regulated activity on interstate commerce was not substantial. The opinion failed, however, to explain how these four factors were weighted and which were decisive, (10) Morrison, which struck down part of the Violence Against Women Act of 1994 five years later, (11) only muddied the waters further. Chief Justice Rehnquist's opinion repeated but did not clarify the factors from Lopez and discounted the detailed congressional findings that gender-motivated violence impairs interstate commerce. (12) Lopez and Morrison thus not only circumscribed the scope of Congress's lawmaking authority, but also blurred its borders.

The Endangered Species Act was one of the many statutes left vulnerable to constitutional challenge under the new Commerce Clause jurisprudence. First enacted in 1973, the ESA "represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." (13) The ESA was equipped with two powerful provisions: section 7, (14) which bars federal agencies from harming a species listed as endangered by the Secretary of the Interior; and section 9, (15) which prohibits the taking of endangered species. (16) The ESA represented a national solution to a national problem. (17) On its face, though, the Act seemed to have no more connection to interstate commerce than the statutes struck down in Lopez and Morrison, and some commentators feared for its survival under the new Commerce Clause jurisprudence. (18)

II

The Fifth and D.C. Circuits both struggled to justify the Endangered Species Act within the Lopez and Morrison framework. The Fifth Circuit looked hard for a commercial angle to the ESA and found one in the endangered species themselves. Judge Barksdale asserted that the "ESA's protection of species is economic in nature," (19) and he noted the potential commercial value of endangered species' genetic resources and the opportunity for renewed trade in regenerated species as examples of the economic effects of species preservation. (20) Though he acknowledged that the species in question have no commercial value at present, he stated that their protection is essential to the ESA's larger regulatory program. (21) He concluded that because the aggregated takings regulated by the Act substantially affect interstate commerce, the Act is a permissible exercise of Congress's power. (22)

The D.C. Circuit in Rancho Viejo took a very different approach. (23) The court posited as the object of the ESA the 280-home residential development it blocked, not the threatened species it protected. In Judge Garland's phrase, "the ESA regulates takings, not toads."...