Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
By Alan Kovski
An attempt to sharply reduce the scope of the Endangered Species Act by limiting it to species affecting interstate commerce was rejected March 29 by a federal appeals court ( People for the Ethical Treatment of Property Owners v. Zinke, 10th Cir., No. 14-4165, 3/29/17 ).
The decision overturned a U.S. District Court decision that had found federal protections for the Utah prairie dog unlawful.
Had the U.S. Court of Appeals for the Tenth Circuit upheld the district court, the ruling would have created a circuit court split on the subject and could have left many species protected only by state laws and regulations on non-federal land.
About 68 percent of plants and animals protected by the Endangered Species Act are unique to a state, the U.S. Fish and Wildlife Service told the appeals court.
“We’re tremendously relieved by this decision,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a news release. “Given that a majority of America’s more than 1,600 endangered species occur in only one state, a bad ruling would have almost certainly committed hundreds of species across the country to extinction.”
Damien Schiff, a Pacific Legal Foundation attorney who helped represent property owners in the Utah prairie dog case, told Bloomberg BNA the legal team wanted to petition the Supreme Court to review the case. The attorneys would need to discuss the matter with their clients before a definite decision, he said.
Protections for species with tiny territories have been conflicting with development projects of all kinds since construction of the Tennessee Valley Authority’s Tellico dam was temporarily halted in 1978 to protect a minnow called the snail darter.
The appeals court in the Utah prairie dog case based its decision on the idea that the Endangered Species Act created an interstate regulatory system with great scope under the federal government’s constitutional authority over interstate commerce.
“In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce,” the three-judge panel ruled.
The particular case of the Utah prairie dog could not be separated from the broader regulatory scheme, in the court’s view.
The appeals court especially cited the Supreme Court case Gonzales v. Raich, 545 U.S. 1 (2005), which allowed the federal government to prohibit the local cultivation and use of marijuana in compliance with California law.
In effect, the court said it does not matter that the Utah prairie dog is not an article in interstate commerce and that the animal does not, in itself, affect interstate commerce, Schiff said.
“It is a considerable expansion from what we think the Commerce Clause was meant to authorize,” Schiff said.
The vast majority of protected species have no commercial value, Schiff said, arguing that the Endangered Species Act is not really a market regulatory system.
The court’s interpretation of the Commerce Clause could allow federal regulation of areas traditionally left to states, such as divorce law, by embedding the particular subject in a larger interstate regulatory system capable of having an impact on commerce, Schiff said.
To contact the reporter on this story: Alan Kovski in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)