October 31, 2011

The Endangered Species Act can run from the Constitution, but it can't hide

By The Endangered Species Act can run from the Constitution, but it can't hide

Author: Brandon Middleton

Looks like the greenies are having a nice little field day in response to the Supreme Court's decision not to review PLF's Commerce Clause challenge to the federal delta smelt regulations.  Feel free to peruse their sites yourself, but you'll only find ad hominem attacks against PLF and its constitutional allies, as well as the odd suggestion that the delta smelt water cutbacks are actually for the purported benefit of other federally-protected fish species (this is a legal redundancy demonstrating that even the enviros sometimes have difficulty coming to grips with the audacity of their advocacy).

What you won't find from NRDC et al.: a principled defense of the Ninth Circuit's decision to uphold the delta smelt regulations under the Commerce Clause, or any explanation of how their interpretation of the Constitution offers a limit to federal regulatory authority.

Sure, there are the standard "ecosystem" arguments, such as Defenders of Wildlife's claim that "[e]ven if a species does not have immediate commercial value and does not itself cross state lines, every plant and animal is an integral part of a much larger web of life that sustains us all."

Of course, the problem with this logic is that allows for federal regulation over just about everything.  As Judge David Sentelle wrote when he dissented in a similar case in the D.C. Circuit,

[T]he rationale dependent upon the purely speculative future impact of an action with no demonstrable impact at all cannot be said to "ha[ve] any effect on interstate commerce (much less a substantial one)…." If it could, then I do not see how Congress could be prohibited from regulating any action that might conceivably affect the number or continued existence of any item whatsoever. A creative and imaginative court can certainly speculate on the possibility that any object cited in any locality no matter how intrastate or isolated might some day have a medical, scientific, or economic value which could then propel it into interstate commerce. There is no stopping point. . . .

[T]he Commerce Clause empowers Congress "to regulate commerce" not "ecosystems." The Framers of the Constitution extended that power to Congress, concededly without knowing the word "ecosystems," but certainly knowing as much about the dependence of humans on other species and each of them on the land as any ecologist today. An ecosystem is an ecosystem, and commerce is commerce.

Judge Edith Jones of the Fifth Circuit has also recognized that the "ecosystem" rationale "rests on the false implication that all takes of all species necessarily relate to an ecosystem, which by its very grandiosity must at some point be 'economic" in actuality or in effect," and which is "precisely the reasoning rejected by the Supreme Court" in prior Commerce Clause cases.  Yet according to NRDC, it is "mad lawyering" to point this truth out, notwithstanding these statements from prominent federal judges.

In the Ninth Circuit delta smelt decision, the court based its analysis on the unprecedented proposition that "when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to 'commerce or any sort of economic enterprise.'"  Now, if someone could demonstrate where the Supreme Court has ever suggested that the effect of a statute's implementation governs a Commerce Clause analysis, or how the Ninth Circuit's holding actually limits federal authority under the Commerce Clause, that would be helpful.

In the meantime, I will note that today's news does not mean that the Supreme Court agreed with the Ninth Circuit.  The decision not to review our case is simply that, but PLF will no doubt continue to press the High Court to review this issue of fundamental importance.

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