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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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ESA Constitutionality

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Is the Endangered Species Act constitutional?  Does it withstand scrutiny under the Commerce Clause?  

In the opinion of this scholar, a substantial part of the basis for the ESA is indeed economic -- tourism, medicine, ecosystem (and thus agricultural) health.  See, Why Keep the ESA?in the right side column.  Moreover, in the statute, and its legislative history, Congress offered specific explanations of the ESA that sufficiently relate the statute to the Commerce Clause:

1. Congress passed the ESA because "fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people."16 U.S.C. §1531(a).

2. “The value of this genetic heritage is, quite literally, incalculable.” Id. at 178 (quoting H.R. Rpt. 93-412, at pp. 4-5 (1973)).

Ultimately, consistent with these Congressional statements, numerous courts have declared the ESA constitutional (see below), relying, in part, upon the concept of "aggregation" and the principle that the aggregated takings of every species under ESA Section 9 would have a significant effect on interstate commerce.  (In fact, in some cases, the taking of just one critically endangered species could arguably have equivalently significant effects on interstate commerce if the loss of that one life affected the long term survival or procreation of the species.)

Still, while the caselaw is clear -- for the moment -- the academic debate continues...

Noteworthy caselaw:

Rancho Viejo v. Norton (D.C. Cir. 2003), discussing and applying United States v. Lopez,514 U.S. 549 (1995)(commerce clause test in case involving the "Gun Free School Zones Act"), National Ass’n of Home Builders v. Babbitt (‘‘NAHB''), 130 F.3d 1041 (D.C. Cir. 1997)(Commerce Clause challenge to ESA), United States v. Morrison, 529 U.S. 598, 607 (2000)(according the ESA a ‘‘presumption of constitutionality")

Excerpt from the decision...        

The ESA regulates takings, not toads. Morrison instructs that ‘‘the proper inquiry'' is whether the challenge is to ‘‘a regulation of activity that substantially affects interstate commerce.'' 529 U.S. at 609 (emphasis added). Similarly, SWANCC declares that what is required is an evaluation of ‘‘the precise object or activity that, in the aggregate, substantially affects interstate commerce.'' 531 U.S. at 173 (emphasis added). When, as directed, we turn our attention to the precise activity that is regulated in this case, there is no question but that it is economic in nature.

***

See also GDF Realty Invs., Ltd. v. Norton, 169 F. Supp. 2d 648, 660-661 (D. Tex. 2001)("because the regulated activity in this case is economic in nature, the Court may aggregate the effects of similar activity for the purpose of determining the effect on interstate commerce"), affirmed on different grounds by GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 640-641 (5th Cir. 2003)("ESA is an economic regulatory scheme; the regulation of intrastate takes of the Cave Species is an essential part of it. Therefore, Cave Species takes may be aggregated with all other ESA takes. As noted, plaintiffs concede such aggregation substantially affects interstate commerce. In sum, application of ESA's take provision to the Cave Species is a constitutional exercise of the Commerce Clause power.") rehearing and rehearing, en banc, denied GDF Realty Invs., Ltd. v. Norton, 362 F.3d 286, (5th Cir. 2004), writ of certiorari denied, GDF Realty Invs., Ltd. v. Norton, 125 S. Ct. 2898 (2005).

Internet Resources:

Michael C. Blumm and George Kimbrell, "Flies, spiders, toads, wolves, and the constitutionality of the Endangered Species Act's take provision." Click here for link to article.

See alsoMichael C. Blumm & George A. Kimbrell, "Gonzalez v. Raich, the 'Comprehensive Scheme' Principle, and the Constitutionality of the Endangered Species Act" 35 Envtl. Law 491 (Summer 2005), published by Lewis & Clark Law School (noting that in light of the Supreme Court's recent decision in Gonzales v. Raich, which upheld federal authority to regulate medical marajuana permitted by states, the Supreme Court validated the comprehensive scheme principle under which the Fifth Circuit upheld the ESA's constitutionality, so the ESA's consitutionality is no longer open to serious question.)