By Charlie Birkel*Charlie Birkel (HLS ’19) is a law clerk to the Hon. Jan E. DuBois of the United States District Court for the Eastern District of Pennsylvania.
The Trump administration has attracted considerable attention in recent months by placing the Endangered Species Act (“ESA”) in its deregulatory crosshairs.1Lisa Friedman, U.S. Significantly Weakens Endangered Species Act, N.Y. Times (Aug. 12, 2019), https://www.nytimes.com/2019/08/12/climate/endangered-species-act-changes.html. But a more significant existential threat to the Act may lie in wait. With a solidly conservative Supreme Court in place, the ESA’s validity under the Constitution could be threatened.
While the lack of a circuit split has likely kept the Court from granting review, it has not stopped challenges from being brought.2People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990 (10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018) [hereinafter PETPO]; San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011), cert. denied, 565 U.S. 1009 (2011); Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007), cert. denied, 552 U.S. 1097 (2008); GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005); Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998). With each successive test of the Act’s power and scope, lower courts have been forced to construct a tenuous—and at times confused—analytical framework. All six courts of appeals to consider the question of the ESA’s constitutionality have found it to be valid under the Commerce Clause—even when used to protect species that do not cross state lines (so-called “intrastate species”) and have no obvious commercial value.3See supra note 2. However, their decisions notably lack a uniform rationale. While courts have adopted similar language and drawn on the same precedents, there remains a distinct lack of harmony. The dissonance could prove fatal before the current Supreme Court.
This post will examine three rationales offered for the ESA’s constitutionality. All three have been used by lower courts to uphold the Act under the Commerce Clause, but only one has a chance of persuading the Chief Justice and finding a majority at the Court. The first takes the direct approach of considering the calculable commercial value of the species at hand. The second flips the script—considering the economic impact of regulation on economic growth and development. The third maintains a focus on protection of threatened and endangered species but with a broader, all-encompassing focus—aggregating the effect of such takes to demonstrate a substantial effect on interstate commercial. Only this last defense effectively threads the needle of the Supreme Court’s commerce clause jurisprudence and promises to attract Chief Justice Robert’s key swing vote.
The ESA’s protection of non-commercial, intrastate species survives at the far reaches of the Supreme Court’s commerce clause jurisprudence. But the Court has left some room for federal regulation of noneconomic activities. In United States v. Lopez,4514 U.S. 549 (1995). the Court outlined three categories of activity that the commerce power covers: channels of interstate commerce, instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.5Id. at 558–59. Within the third category, the Court recognized that the Commerce Clause permitted regulation of intrastate commercial activities that, “viewed in the aggregate,” substantially affect interstate commerce. While, the Court claimed that it had never before extended the aggregation principle to the regulation of non-commercial intrastate activities,6Id. at 559–60 (recharacterizing Wickard, in particular, as involving regulation of economic activity). it affirmed Congress’ power over intrastate activities that bore little relation to interstate commerce, noting that “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.”7Id. at 558 (internal quotation marks omitted). Provided that it was “an essential part of a larger regulation of economic activity, [which] could be undercut unless the intrastate activity were regulated,” the Constitution would not be offended.8Id. at 561. Although United States v. Morrison9529 U.S. 598 (2000). suggested that the underlying activity being regulated must be economic for this aggregation analysis to save a statute,10See id. at 613. the Court backpedaled in Gonzales v. Raich,11545 U.S. 1 (2005). holding that noneconomic intrastate activity could be aggregated to demonstrate a substantial effect on interstate commerce if its regulation was “an essential part of [a] larger regulatory scheme.”12Id. at 26. The court maintained, however, that the broader scheme must still bear a “substantial relation to commerce.”13Id. at 17, 25.
Over the course of these doctrinal oscillations, advocates and lower courts developed roughly three different arguments to justify the application of the ESA to intrastate species that lacked obvious commercial value. One pre-Raich approach, as articulated by the Fourth Circuit in Gibbs v. Babbitt, was to attempt to assign potential economic value to the species at issue.14Gibbs v. Babbit, 214 F.3d 483, 492 (4th Cir. 2000), cert. denied, 531 U.S. 1145 (2001). The Gibbs court found a “direct” relationship between red wolves and interstate commerce.15Id. As the court reasoned, “with no red wolves, there will be no red wolf related tourism, no scientific research, and no commercial trade in pelts.”16Id. The court’s reasoning was an effective means of preserving the ESA on those facts, but has been difficult to replicate for other listings.17See, e.g., People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 57 F. Supp. 3d 1337, 1344–45 (D. Utah 2014), rev’d on other grounds 852 F.3d 990 (10th Cir. 2017) (considering and rejecting arguments in favor of the biological and commercial value of the Utah prairie dog).
Next, the D.C. Circuit sought to fit the ESA into the Lopez–Morrison framework by shifting the focus of its analysis away from the protected species to the commercial activity interrupted by the protections. In Rancho Viejo v. Norton, a panel argued that that the “regulated activity” to be analyzed for substantial effects on interstate commerce was the “planned commercial development” interrupted by the ESA’s protections, “not the [endangered species] that it threatens.”18Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1071–72 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004). As the court reasoned, the Act did not “purport to tell toads what they may or may not do,” but instead addressed itself to “the persons who do the taking.”19Id. at 1072. However, then-Judge John Roberts, in his dissent from denial of rehearing en banc, argued the court had misplaced its focus: “[t]he panel’s opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so.”20See Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting from denial of rehearing en banc).
While Rancho Viejo is excusable in a pre-Raich world that lacks a clear path to aggregate non-commercial activities, more recent articulations of its rationale are less so. Nonetheless, its influence remains apparent as lower courts continue to highlight the incidental impact of the Act on commercial activities. In PETPO v. FWS, the Tenth Circuit upheld the protection of the Utah prairie dog, but once again shifted focus to the effects of the regulation on interstate commerce.21PETPO, 852 F.3d 990, 1002 (10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018). Though the court correctly pointed out that concerns over the detrimental consequences of untempered economic growth and development are baked into the Act’s legislative history, it repeated the mistakes of Rancho Viejo by incorporating the ESA’s incidental role “as a brake on economic activity” into its constitutional analysis.22Id. The court began this analysis by highlighting that the protection of “endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity.”23Id. at 1006. The court went on to conclude that the ESA itself—rather than the takes of threatened species—“substantially affects interstate commerce.”24Id. The slip was a subtle one, but apparently did not escape the notice of the Department of Justice, which changed the verbiage in its brief in opposition to review by the Supreme Court to emphasize that the ESA regulates “activities that substantially affect interstate commerce.”25Brief for the Federal Respondents in Opposition at 9, People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., No. 17-465 (U.S. Dec. 6, 2017), 2017 WL 7198789 (emphasis added).
Finally, the Fifth Circuit outlined the most defensible justification for the regulation of non-commercial, intrastate species under the Commerce Clause in GDF Realty Investments v. Norton.26326 F.3d 622 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005). In a precursor to Raich, the court found that takes of an individual, non-commercial, intrastate species could be “aggregated with those of all other endangered species” to “demonstrate the requisite substantial effect on interstate commerce.”27Id. at 624 Such aggregation was within constitutional limits, the court reasoned, because the regulation of such activity was an “essential part” of a larger “economic regulatory scheme.”28Id. at 630, 639. The court refused to look “primarily beyond the regulated conduct”—i.e. “takes” of endangered species—to the regulated entity—i.e. commercial developers—for justification as the Rancho Viejo court had.29Id. at 634.
The GDF Realty court’s aggregation analysis took on a national perspective, focusing on the fact that the “ESA’s drafters were concerned by the ‘incalculable’ value of the genetic heritage that might be lost absent regulation.”30Id. at 639 (citation omitted). The court did mention that the “majority of takes…result from economic activity,” but this detail remained a secondary point.31Id. As a result, the approach taken by the Fifth Circuit was cited affirmatively by Roberts in his Rancho Viejo dissent. Roberts echoed the GDF court’s concern that an analytical focus on the ESA’s secondary impact on commercial developers would “‘effectually obliterate’ the limiting purpose of the Commerce Clause.”32Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting from denial of rehearing en banc).
Articulating a convincing aggregation theory around any endangered species is not difficult considering the size of the market for illegally taken animals. In articulating defenses to the Act, the Department of Justice has cited that the “estimated value of ESA-prohibited trade in protected species is between $5 billion and $8 billion annually worldwide.”33Brief for the Federal Respondents in Opposition, supra note 22, at 9–10. The brief also highlights legislative history that supports the notion that the ESA contemplates regeneration species that are not currently traded commercially. Id. at 10. It has further emphasized that “genetic variations of protected species” have potential value and, generally, biodiversity is “of great value to agriculture and aquaculture.”34Id. at 10. Similar facts have also been cited to show that protection of intrastate species is an essential part of the ESA’s larger economic regulatory scheme. The Ninth Circuit has highlighted that the ESA “protects the future and unanticipated interstate-commerce value of species” and noted that “[r]egeneration of a threatened or endangered species might allow future commercial utilization” through “recreational observation and scientific study.”35San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1176 (9th Cir. 2011), cert. denied, 565 U.S. 1009 (2011).
Including in this calculus the secondary impact of the Act on commercial activities is ultimately unnecessary. The ESA both reaches farther than Rancho Viejo’s analysis implies—to takes unrelated to commercial development—and focuses on a narrower scope of concerns limited to threatened and endangered species rather than all the environmental consequences of economic growth.
At bottom, advocates need to ensure they do not look “primarily beyond the regulated activity”36GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 634 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005).—their arguments should draw on the protection of endangered species to fuel their arguments, emphasizing the size of the illegal market for endangered species, the value of genetic diversity, and more tangible economic benefits of ecological balance.37See, e.g., Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1273 (11th Cir. 2007), cert. denied, 552 U.S. 1097 (2008). Advocates must understand that forgoing explicit analysis of aggregate economic effects risks running afoul of the Chief Justice’s dissent in Rancho Viejo and putting the ESA in danger at the high court.