INTRODUCTION :: Suppose that a ten-million-dollar development project in Levy County was suddenly stymied by the discovery of a nest of Florida salt marsh voles. Such a delay could endanger a project bringing much-needed jobs to one of Florida’s poorest counties. Despite existing in only one county in one state, this newly discovered nest of Florida salt marsh voles would receive the full protection of the federal government. As a result, the current owners of the newly discovered habitat would have to satisfy a rigorous application process for permits if they wished to continue any planned development.
At first glance such a situation seems incredible, yet discoveries of endangered species and the resulting habitats can be a major headache for developers in exurban communities. In areas outside of Sacramento, California and Austin, Texas, development plans for hospitals and a Wal-Mart were frustrated after similarly rare populations of species were found on private land. Currently, the U.S. Fish and Wildlife Services (FWS) lists one hundred eleven endangered species within Florida’s borders, varying in size from the tiny Okaloosa darter to the large Florida panther. Although some endangered species may exist solely within a single state’s borders, Congress used its interstate commerce authority to enact the 1973 Endangered Species Act (ESA), creating a regulatory system to protect the habitats of all endangered species. In Florida, the most famous beneficiaries of the ESA have been the Florida panther and the manatee, memorialized on license plates throughout the state; yet it is the smaller, less- publicized animals that have created the greatest controversy.
Since the advent of the ESA, numerous authors have criticized the law on policy grounds; ironically, it appears that the greatest threat to the ESA is a constitutional challenge to its very existence. When land developers’ projects are stymied because of the threat posed to unpopular or unknown endangered species’ habitats, nasty litigation seems certain. Further inflaming ideological passions, oftentimes the ESA’s “ugly stepchildren” reside in only a few counties of a state, thereby uniting two groups in opposition to the ESA-litigious developers and strict federalist ideologues. The nexus between these disparate interest groups has culminated in recent years in increasing challenges to the constitutionality of congressional environmental regulations. More specifically, developers and their supporters have sought judicial determination that the Commerce Clause does not provide Congress with the power to regulate the fate of intrastate species with little tangible commercial potential. These arguments, although purportedly limited to challenging the ESA’s applicability to intrastate endangered species, in actuality seek to challenge the constitutionality of the ESA itself, as almost half of all listed species reside in only a single state. Further increasing the pressure on the FWS and the ESA’s defenders has been the political dynamic inherent in court cases pitting environmental regulation against land development.
The Supreme Court’s decisions in Lopez and Morrison provided constitutional ammunition for these federalist-based challenges to congressional Commerce Clause powers. Since Lopez and Morrison, Commerce Clause challenges to the ESA have reached the Fourth, Fifth, and D.C. Circuits. Although all these circuits have upheld the ESA as a valid use of congressional Commerce Clause powers, there has been a wide divergence in the underpinning logic, with glaring inconsistencies as a result. These divergences can be partially explained by the facts particular to each case, including the type of species implicated or the nature of the taking. However, while one court’s argument seemingly runs afoul of Morrison, another court seems to have so stretched the definitional basis of interstate commerce that the publication of a few scientific studies contributed to the finding of a link between the species and interstate commerce. Although the circuits have upheld the ESA against the various Commerce Clause challenges, to inoculate the ESA from future challenges there ought to be a rationale consistent with Lopez and Morrison that protects all endangered species.
This Note will argue first and foremost for the continued need for federal regulatory protections of endangered species, analyzing the various constitutional arguments that courts have marshaled in support of the ESA. Part II will consider the history and current mechanics of the ESA, from prior congressional attempts at regulation to the modern statutory scheme. Of particular importance is the anti-take provision, which prohibits activities that may disturb endangered species through habitat alteration. Part III will analyze Morrison and Lopez, as these cases present the chief constitutional argument against the ESA. Part IV will review the relevant post-Lopez and post-Morrison circuit court decisions, exploring the logic of the opinions as situated with the individual circumstances of each case. Either through their natural range or due to recent environmental and development-related pressures, almost half of the listed endangered species now reside within the borders of a single state. As such, Part V of this Note will analyze the federal regulatory concerns from a Florida-based perspective. For a state, such as Florida, that has its own list of protected species, a federal regulatory program for species protection might seem redundant and unnecessary. However, environmental concepts such as a “race to the bottom” affect all states. Furthermore, ecological protection and ecological diversity are concepts ill-suited to the arbitrary boundaries of our state system. Part VI will explore the latent, but real, impact of healthy ecosystems upon interstate commerce. Accordingly, this Note recommends the application of the Fifth Circuit’s rationale, as it seems best suited to provide protection to all endangered species from all sources of potential “takes.” Unfortunately, the constitutional-based challenges to the ESA disguise and frustrate a meaningful debate about potential ESA reforms that could lessen the impact of regulations on landowners while simultaneously protecting some of our nation’s scarce natural resources. Therefore, this Note concludes with a recommendation for a more holistic approach to questions of ESA constitutionality, for an approach not limited to economic formulas but imbued with a greater appreciation of the option values and biodiversity values endangered by the loss of species nationwide.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person