The L.A. Times has a story about yet another challenge to the Endangered Species Act, and this time it might get to the Supreme Court. In one of my first articles at Organic Matter I wrote about attempts to eliminate the ESA by challenging its authority to regulate endangered species based on the commerce clause of the Constitution:

The United States Constitution gives Congress power to make law, but not just any law – Congress has to find justification for any law they wish to pass in the Constitution. Unfortunately our founding fathers neglected to include an article about spotted owls. Thus it has come to be that almost all environmental law rests on the commerce clause, which gives Congress ability "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

The particular case that Fred Purcell is raising challenges the application of the commerce clause on the grounds that 1.) the endangered species in question (based on the article it sounds like there are two – both arachnids) have no commercial value, and 2.) they are locally endemic, which means that they don’t cross state borders. At face value, this doesn’t sound especially hopeful – the ESA is based on a law that governs interstate commerce, and yet it regulates non-commercial, intrastate endangered species. And yet, in a 1997 case in California, the D.C. Circuit of the U.S. Court of Appeals handed down a decision that unambiguously declared that the ESA does have the constitutional right to regulate said species.

In National Association of Home Builders v. Babbitt, the application of the ESA to the Delhi Sands Flower-Loving Fly was challenged by virtue of the fact that the fly had negligible commercial value and was endemic to California. In the decision, Judge Wald explained that biodiversity is an essential aspect of the natural resource regime, and as such has important implications for all commerce; thus any harm to biodiversity is automatically damaging to commerce. In addition, Judge Wald argued that the ESA prohibition against “takings” (any harm to) endangered species is a reasonable solution to the concern over a “race to the bottom” scenario, which occurs when states are allowed to set their own environmental laws, resulting in a scenario in which states competitively relax environmental standards in order to make themselves more attractive to commerce than other states [1].

Purcell claims “I don't want to negate the Endangered Species Act. I just want to sell this land to the government or develop it. And the way the law is now, I can't do either one.” Like Purcell, many property-rights advocates can legitimately make the same statement – they aren’t out to harm endangered species, they just want to be able to do whatever they want with their land. Unfortunately the development of endangered species habitat has an impact on biodiversity that goes beyond the boundaries of “private property” and inflicts a cost on society as a whole. In basic economic theory this effect is termed an “externality,” the existence of which indicates a failure of the free-market system, and a need for regulation. This is the accepted rationale for regulating other environmental concerns such as air pollution and toxic waste.

The Supreme Court does not have a history of tackling environmental cases, usually leaving such matters to lower courts (environmental cases rarely rise above the usually environmentally friendly D.C. Circuit Court). Make no mistake though, there are those who would relish the opportunity to restrict the commerce clause – both Chief Justice Rehnquist and Justice Scalia have indicated their view that the clause should be limited to a more specific definition of “commerce.”

In case I’ve trivialized the matter by focusing on legal details, let me conclude by zooming back out to the big picture: the Endangered Species Act is not the only environmental statute that relies on the commerce clause. Others laws that rely at least partially on the commerce clause include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Safe Drinking Water Act. Even so, the Endangered Species Act is the flagship statute of American environmental law (as well as one of the most tenuous) – it is the only law that can be used to protect habitat, which is arguably the single most important environmental resource we possess.

[1] Adler, Jonathan H., Judicial Federalism and the Future of Federal Environmental Regulation. Case Western Reserve University School of Law, 2004. pp. 29-30.