October 13, 2009

Thoughts on PLF's delta smelt Commerce Clause challenge

By Thoughts on PLF's delta smelt Commerce Clause challenge

Author: Brandon Middleton

Last week a federal district court in Fresno rejected Pacific Legal Foundation's constitutional challenge to the federal government's devastating delta smelt water restrictions. Even though the delta smelt is a noncommercial species that is found only in California, the court ruled that the U.S. Fish and Wildlife Service may regulate the smelt under the Commerce Clause. According to the court, in enacting the Endangered Species Act, "Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity."

We're obviously disappointed with the decision, but not discouraged. We think the district court applied incorrect legal standards, making its decision ripe for appeal. We also believe that the biodiversity rationale relied upon by the court offers no limit to the power of the federal government.


Take, for example, the U.S. Congress Office of Technology Assessment's 1987 definition of biological diversity:

"Biological diversity is the variety and variability among living organisms and the ecological complexes in which they occur. Diversity can be defined as the number of different items and their relative frequency. For biological diversity, these items are organized at many levels, ranging from complete ecosystems to the chemical structures that are the molecular basis of heredity. Thus, the term encompasses different ecosystems, species, genes, and their relative abundance."

In other words, biodiversity is not commerce, and to justify federal regulation of intrastate species based simply on the commercial benefits of biodiversity is to authorize the federal government to become involved in a host of local, noneconomic activities that may provide a commercial benefit. Education is one such example, and yet the Supreme Court stated in United States v. Lopez that permitting the federal government to regulate activities that adversely affect educational opportunities provides no real limits to the federal government's commerce power "because, depending on the level of generality, any activity can be looked upon as commercial."

One other aspect the court's decision is worth mentioning here.  Concerning species like the delta smelt that are found only in state, the court indicated in a footnote that "Congress could have excluded intrastate species from the scope of the ESA, but it chose not to do so."

This strikes me as a very charitable view of federal legislators and their collective intent to abide by the limits of the Commerce Clause. On this issue, I tend to agree with Ilya Somin, who suggested a bit ago that Congress should no doubt "exercise restraint and forego unconstitutional legislation even in cases where the [Supreme] Court is willing to permit it. But I have very little confidence that either political party will actually do that. There is ample evidence to suggest that both Democrats and Republicans are willing to enact legislation of dubious constitutionality when it suits their political purposes to do so."

It's not clear to me that Congress chose not to exclude intrastate species from the scope of the ESA. Rather, I think Congress simply did not consider this issue. This is why judicial scrutiny of Commerce Clause regulation is so important — the judiciary appears often times to be only branch of the federal government to recall that the Constitution does not provide for unlimited federal power.

This sort of deference to Congress makes our appeal of the district court's decision that much more warranted.  Stay tuned.

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