Amicus Brief in Endangered Species Act Commerce Clause Appeal

May 28th, 2015

I joined an amicus brief on behalf of the Cato Institute and Professors Jonathan Adler and James Hufffman supporting the People for the Ethical Treatment of Property Owners (PETPO–catchy, no?) in their constitutional challenge to the enforcement of the Endangered Species Act. At issue in this case is the Utah prairie dog, which has absolutely no economic value, and has never dug any holes across state lines. Even under Lopez, Morrison, and Raich, this rodent cannot be considered interstate commerce, and the necessary and proper power cannot reach this far.

Trevor Burrus and Roger Pilon have this summary of the brief, aptly titled “Problematic Prairie Pup Protections Put “Propriety” In Perspective.”

The U.S. Fish and Wildlife Service, exercising power purportedly delegated to it pursuant to Congress’s power to regulate interstate commerce, has classified the countless Utah prairie dog, which has no commercial value and has never dug holes in any lands beyond southwestern Utah, as “threatened” under the Endangered Species Act (ESA), thereby prohibiting the “take” of said prairie dogs—which essentially means doing anything that disturbs the little rodents’ habitat. If the varmints invade their property, human residents cannot build homes, start or operate certain businesses, or, in the case of Cedar City, protect playgrounds, an airport, and a local cemetery from their burrowing and barking.

Joining as People for the Ethical Treatment of Property Owners (PETPO), and represented by the Pacific Legal Foundation, residents filed suit, claiming that the “take” rule for the noncommercial, intrastate Utah prairie dog exceeds Congress’s power to regulate interstate commerce. Congress has the power to regulate “commerce among the states,” not species. PETPO’s suit argues that the ESA cannot reach activities that are intrastate and noncommercial—activities, for example, like filling holes in your lawn or otherwise developing land where prairie dogs might live. The federal district court agreed and therefore struck down the “take” regulation. The case is now before the Tenth Circuit Court of Appeals.

Joined by constitutional law professors Jonathan H. Adler, James L. Huffman, and Josh Blackman, Cato has filed a brief supporting the landowners. We argue, consistent with prior Supreme Court precedent, that the Constitution’s Commerce Clause affords Congress the power to regulate only items, channels, or instrumentalities of interstate commerce. If Congress wants to regulate activities that “substantially affect” interstate commerce, that power rests in the Necessary and Proper Clause, which gives Congress the means to regulate interstate commerce—provided those means are both necessary and proper. But the prohibited activities do not substantially affect interstate commerce. Moreover, the “take” rule is not necessary for regulating interstate commerce; Congress can regulate that commerce without prohibiting these residents from using their property. Nor is the rule proper since the power to regulate uses of property that do not affect interstate commerce belongs to the states. For those several reasons the “take” rule as applied to the Utah prairie dog exceeds the powers the Founders and the Founding generation delegated to Congress.

PLF collects the other briefs filed by several states, several Senators and Representatives, NFIB, the Chamber of Commerce, and many others:

One of the briefs was filed on behalf of the state of Utah, joined by Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming. It highlights the significant federalism concerns that the Utah prairie dog regulation raises. It also explains that enforcing the Constitution’s limits against the federal government does not threaten protection of the species. Utah, like all states, has primary responsiblity for protecting wildlife within its borders and will continue to protect the Utah prairie dog.

[Utah’s prairie dog conservation] plan seeks to supplement and establish self-sustaining prairie dog populations on federal and state lands away from human conflict by capturing problem animals on private lands and relocating them to preserve areas. This will gradually transition prairie dogs from human conflict areas that will never secure their future to preserve areas where they are unconditionally protected from take and can flourish without human interference.

Another brief was filed on behalf of Senators Mike Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop.

It is no doubt true that Congress, in enacting the Endangered Species Act, wished to protect biodiversity and, in so doing, preserve whatever hidden value may lie within protected species. But these legislative aims cannot transform the Act into a market regulatory scheme. As the Supreme Court has emphasized, regulation cannot be upheld under the Commerce Clause using attenuated causal reasoning to reach the desired interstate market result. To hold otherwise would convert the Commerce Clause into the “‘[h]ey, you-can-do-whatever-you-feel-like Clause.’”

The Cato Institute, joined by Professors Jonathan H. Adler, James L. Huffman, and Josh Blackman, and the Claremont Institute’s Center for Constitutional Jurisprudence filed briefs arguing that the Utah prairie dog regulation can’t be squared with the founders’ vision for the balance between state and federal power.

If Congress has power over a non-commercial, wholly intrastate activity, such as private land use that may incidentally harm a creature like the Utah prairie dog, then it is worth asking what sorts of activities are outside Congress’s commerce power. After all, every human activity has some environmental effect, and if identifiable environmental consequences are all that is necessary to justify commerce power regulation, then the power asserted is actually a power over the entire ecosystem and all of its components. Were the federal government given the broad power to regulate any activity that can harm any species of wildlife or the entire ecosystem, that power would have been enumerated separately, not embedded in the Commerce and Necessary and Proper Clauses.

People for the Ethical Treatment of Property Owners also drew support from friends at the U.S. Chamber of Commerce and National Federation of Independent Businesses. Their briefexplains how the heavy hand of federal regulation harms not only property owners but species.

As part of a 2011 settlement with several environmental groups and resulting consent decrees, FWS has committed to reviewing 757 candidate species for listing as endangered or threatened, and to make a final decision on more than 251 pending species by 2018. … If the history recounted above is any guide, the resulting economic impact on private landowners will be measured in billions of dollars. This looming threat to people, their land, and their livelihoods requires that courts enforce, rather than ignore, the clear constitutional limits on FWS’s authority to list intrastate species. …

[T]here is good reason to question whether FWS’s no-costs-barred approach is even effective at protecting listed species. The ESA has a paper-thin record of success: only 59 species have been removed from the threatened and endangered list (which now includes more than 1,500 domestic animal and plant species), and of even that small number, 10 were removed due to extinction and another 19 were removed due to data errors, as opposed to successful recovery.

Additional briefs were filed on behalf of conservation districts and agricultural interests, theNational Association of Home Builders, and Mountain States Legal Foundation. These briefs add yet more perspective and highlight the national importance of the challenge.