September 2015
Playing Whack-a-Mole with the Endangered Species Act
by Bruce Myers & Jay Austin, Senior Attorneys, Environmental Law Institute
To date, a wolf, a toad, two fish, a fly, and a collection of “cave bugs” have successfully carried the banner of the Endangered Species Act (ESA) against a series of constitutional challenges. On Monday, the Tenth Circuit will hear oral arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—yes, you read that name correctly—on whether the Act is unconstitutional as applied to the endangered Utah prairie dog. PETPO has implications for nearly every federal environmental law, and for other laws enacted on the basis of Congress’ authority to pass legislation that is necessary and proper for regulating interstate commerce.
As Professor David Driesen documented in earlier posts (here and here), PETPO asks whether the Fish & Wildlife Service can protect this prairie dog if it neither crosses state lines nor has obvious economic value. A federal district judge in Utah thought not, triggering this appeal. Now, the court must decide whether this unassuming rodent stands entirely outside Congress’ constitutional authority to regulate activities that, in the aggregate, “substantially affect” interstate commerce (as the Supreme Court characterized this aspect of the commerce power in its 2005 medical marijuana ruling, Gonzales v. Raich).
This is not property-rights advocates’ first whack at the ESA, nor the first time a federal court has considered the constitutionality of protecting intrastate or highly localized species under it. From 1997 to 2011, six appellate cases spanning five circuits rejected similar challenges. These rulings feature a rogues’ gallery of species that are mostly uncharismatic and lack evident commercial value: the Delhi Sands Flower-Loving Fly, California delta smelt, arroyo southwestern toad, Alabama sturgeon, red wolf, and various subterranean cave-dwelling invertebrates.
While the decisions uniformly found no constitutional problem with federal protection of intrastate species, the courts’ approaches and underlying rationales varied. For example, should a reviewing court focus on the activities (such as commercial development or agricultural production) that most often destroy species or habitat? Or on the fact that the ESA is a comprehensive regulatory scheme that, to be effective, must of necessity cover intrastate instances? Or on the vast interstate economic value, actual and potential, of threatened and endangered species as a whole? How to approach a Commerce Clause challenge appears to be very much in the eye of the judicial beholder. Indeed, in 2003, then-judge John Roberts of the D.C. Circuit noted the clash of rationales in the ESA cases and famously, or infamously, went on to crack that his judicial colleagues’ decision in one such case “leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce ... among the several States.’”
What remains crystal clear, however, is that Congress is owed a great deal of deference when it enacts environmental or other legislation under its commerce power. As the Supreme Court wrote in Raich:
In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.
Sometimes the courts expressly refer to a version of this rational basis review in their Commerce Clause rulings; other times they don’t. But as recently as 2011, Justice Ruth Bader Ginsburg drove the deference point home in her partial concurrence in NFIB v. Sebelius, the Affordable Care Act decision. After discussing the respect owed to Congress by the courts, she harkens back to the landmark 1981 environmental ruling in Hodel v. Indiana, where the Supreme Court upheld the constitutionality of the federal surface mining law. There, the Court insisted that it “‘will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.’”
Thus, the bar for judicial review of comprehensive legislation that has a substantial relation to commerce is a low one—a point the Government rightly seizes on in its Tenth Circuit brief in PETPO. Echoing Raich, the Department of Justice argues that “[t]he reviewing court’s modest task is to determine whether Congress had a rational basis for concluding that failure to regulate the particular intrastate activity would leave a gaping hole in the statute.” The ESA is a comprehensive framework for protecting all manner of threatened and endangered species, and it implicates many economic concerns—from the activities that destroy species and their habitat to the overarching value of the species themselves. With over two-thirds of listed species living intrastate—doubtless haplessly, but often for the precise “reason” that their numbers and range have been diminished by economic activity—how could including such species under the Act be anything but rational?
Next week’s oral arguments, as well as the Tenth Circuit’s eventual written opinion, will likely explore the nuances of what it means for an activity to constitute “commerce”—and, more specifically, how the ESA amounts to economic legislation. But it is difficult to see how any fair measure of deference afforded to Congress would result in anything other than a reversal of the district court’s anomalous decision.
And regardless of who wins this latest round, it seems inevitable that the Utah prairie dog will soon be popping up in a cert petition.