Environmental & Energy
Apr. 29, 2005
Much of Endangered Species' Value Lies In The Unknown
Forum Column - By Jan Stevens - The suggestion that Congress exceeded its powers in enacting the Endangered Species Act is provocative indeed. It implies that Congress may act to protect wild animals under the Commerce Clause only if the particular species has some kind of economic value.
Jan S. Stevens
Forum Column
By Jan Stevens
The suggestion that Congress exceeded its powers in enacting the Endangered Species Act is provocative indeed. It implies that Congress may act to protect wild animals under the Commerce Clause only if the particular species has some kind of economic value.
A recent commentary ("Constitutionality of Endangered Species Act Depends on Economics," March 31 Daily Journal) cites several anecdotal examples in which the protection of species with seemingly funny names interfered with worthy projects such as freeway expansion, the reintroduction of wolves into their former habitat irked its human inhabitants, and a court upheld the protection of creepy cave spiders.
It's true that states are worthy guardians of our natural resources, including endangered species; indeed, Congress has recognized this as well, assigning primary responsibilities for the management of wildlife to states in such statutes as the Federal Land Policy Management Act, the Multiple Use-Sustained Yield Act of 1960 and the Wild and Scenic Rivers Act.
However, the contention that somehow the Supreme Court is ready to strike down the Endangered Species Act in its zeal to reinterpret the Commerce Clause gives one pause for several reasons.
For one, endangered and threatened species don't know about state boundaries. The fact that, at a given time, a species may be found only in a particular place does not necessarily mean that it does not reside elsewhere, even in other states. As a federal court said of the more attractive Hawaiian Palila bird, "The Palila is free to roam wherever it pleases and can quit the confines of the state tomorrow for a distant abode over which the state has no jurisdiction." Palila v. Hawaii Department of Land & Natural Resources, 471 F.Supp. 985 (1979).
Some wild creatures, such as mountain lions, require extensive ranges of hundreds of miles. Other less-active travelers may nevertheless be located near a boundary facilitating their interstate travel. The noncommercial snail darter in TVA v. Hill, 437 U.S. 153 (1978), did not venture beyond its small homesite in Tennessee. Indeed it would be an anomaly, as one federal court observed, if the power of Congress to protect species applied only to those abundant and scattered across state lines, and not to those rarer ones educed to a single state. Building Industry of Superior California v. Babbitt, 979 F.Supp. 893 (1997).
The Supreme Court also understands that, put simply, today's economically valueless species may be tomorrow's cure for cancer. The literature is rife with scientific discoveries of the value of one natural species in ways never imagined. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Justice Anthony Kennedy appropriately noted a need to evaluate regulations in terms of constantly evolving scientific knowledge rather than the state of law in Blackstone's time.
Further, the Supreme Court recognizes that biodiversity may forestall disaster. The world's food crops and feed grains comprise only about 130 plant species. Sudden pests and blights could wreak havoc in the absence of genetic diversity. In its snail darter decision, the court quoted a House committee report explaining the need for such legislation: "The value of this genetic heritage is, quite literally, incalculable. ... From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: They are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask." TVA v. Hill.
Finally, the federal government's jurisdiction over wildlife is not restricted to the Commerce Clause. It also arises under Congress' treaty-making power, and the Property Clause.
Justice Oliver Wendell Holmes had no problem in finding that the Migratory Bird Treaty Act trumped state authority over its wild animals. "We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed." Missouri v. Holland, 252 U.S. 416 (1920).
It would be anomalous to state that the national government may act to preserve a species under its treaty-making power, but not the Commerce Clause.
The Property Clause power is particularly significant in light of the extensive land holdings of the United States in the western states - nearly 50 percent in California alone - and the court's consistent willingness to uphold federal efforts to protect those lands to the extent of restricting activities outside these lands, such as fencing to restrict access to them. Camfield v. United States, 167 U.S. 518 (1897). Then, of course, there are the submerged lands offshore, in which the Supreme Court has held that the United States has "national dominion" and "paramount rights in and power over." U.S. v. California, 332 U.S. 19 (1947).
It seems unlikely that the court's criminal law decisions in U.S. v. Lopez, 514 U.S. 549 (1995) (guns in school zones), and U.S. v. Morrison, 529 U.S. 598 (2000) (gender motivated violence), indicate any willingness by the court to take us back to the good old days of unrestricted child labor, monopoly and unlimited workdays. In Lopez, Chief Justice William Rehnquist spoke for five of the nine justices when he approvingly quoted the court's earlier statement in Maryland v. Wirtz, 392 U.S. 183, that "where a general regulatory statute bears substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."
In any event, the Endangered Species Act does not regulate species. It regulates activities that affect species - activities that are often economic in nature.
Lopez would not have become law were it not for the highly qualified concurrence of Kennedy and Justice Sandra Day O'Connor. In his opinion, Kennedy, often characterized along with O'Connor as the swing votes of the court, describes the court's holding as "necessary, though limited," and observes that the history of Commerce Clause jurisprudence "counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of national power."
The Endangered Species Act protects species with benefits and values as yet unknown to us. The plant, insect or creature it protects may inspire tourists as well as scientists to travel long distances to observe it. Cf. Heart of Atlanta Motel Inc. v. U.S., 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964). Surely these rationales are sufficient for the Endangered Species Act to pass muster under the Commerce Clause, as four federal circuit courts have concluded since Lopez. See Rancho Viejo LLC v. Norton, 323 Fed.3d 1062 (D.C. Cir. 2003), certiorari denied, 540 U.S. 1218 (2004); rehearing denied, 541 U.S. 1006 (2004); GDF Realty Investments Ltd. v. Norton, 326 Fed.2d 622 (5th Cir. 2003), petition filed, 72 USLW 8742 (May 27, 2004), No. 03-1619; Gibbs v. Babbitt, 214 Fed. 3d 483 (4th Cir. 2000); and National Association of Homebuilders v. Babbitt, 130 Fed.3d 1041 (D.C. Cir. 1992), certiorari denied, 524 U.S. 937 (1998).
As the court observed in TVA v. Hill: "Congress was concerned about the unknown uses that endangered species might have and about the unforeseeable place such creatures may have in the chain of life on this planet." The court's reluctance to accept its many opportunities since Lopez and Morrison to extend those holdings to the environment is understandable and should continue.
Jan Stevens is a former assistant attorney general for land law and a former environmental law lecturer at UC Berkeley.
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