Is the Endangered Species Act…Endangered?

The Utah prairie dog seems like an Endangered Species Act success story. Forty years ago, it was headed toward extinction. Farming and ranching were destroying its habitat, and people were poisoning the one-pound animals in large numbers, deeming them a nuisance. To boot, the same bacteria that caused the bubonic plague had infected thousands. By the 1970s only around 3,300 remained, and their range had shrunk dramatically.

Given the urgency, the species was one of the first to win protection under the 1973 Endangered Species Act, and the results have been remarkable. Utah now has more than 50,000 individuals, and the population continues to rebound.

But some see this story differently—as an overreach by a runaway federal government willing to trample on the U.S. Constitution and the rights of the state of Utah to rescue a pesky rodent. That is the opinion of federal district judge Dee Benson, who earlier this month ruled that the Endangered Species Act is unconstitutional when it is used to protect a species that, like the Utah prairie dog, exist entirely within the borders one state and has at most a minor impact on the economy.

That’s kind of a problem, considering that the whole point of an endangered species is that there aren’t very many of them. “Endangered species are endangered because they are rare—more than half of the currently listed species live entirely within one state,” says Rebecca Riley, a senior attorney at NRDC (which publishes Earthwire). “This theory would gut the Endangered Species Act and put several other conservation laws at risk.”

So it’s a good thing the decision is an outlier, likely headed for reversal on appeal. The Endangered Species Act has widely been upheld by other federal courts. What’s more, Judge Benson has a track record of anti-conservation rulings. He made headlines in 2011, for example, when he sentenced environmental activist Tim DeChristopher to two years in federal prison for submitting phony bids for oil and gas leases on federal lands—a punishment many viewed as excessive. (DeChristopher was finally released last year, after 21 months in custody.)

But there’s also an outside chance the case could represent a disturbing sea change. Conservative judges and legal scholars have been working to constrict federal power for decades, and it might only be a matter of time before one of the pillars of modern conservation, the Endangered Species Act, is in their crosshairs.

"A Shot Across the Bow of Congress"

To understand how that might happen, we need a bit of legal history. (Fair warning: I used to be a lawyer, so I’m into that sort of thing.) The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is the clearest constitutional description of a federal government of limited powers.

Sometimes, however, the nation’s problems get too big for a weak central government. Think of the Civil War or the Great Depression. At those times, politicians and judges go hunting for a constitutional justification to allow the federal government to support elderly Americans, regulate the stock market, and undertake other big programs.

This is when a clause in the Constitution allowing Congress to regulate commerce comes in handy. Between the beginning of the New Deal and the early 1990s, federal judges allowed the federal government to vastly expand its powers, as long as Congress could find some plausible connection to interstate commerce.

All this changed in 1995, when, out of the blue, the Rehnquist court struck down the Gun Free School Zones Act of 1990, arguing that carrying a gun (whether on school property or elsewhere) is not an act of interstate commerce. United States v. Lopez perplexed legal scholars, who wondered whether it was a one-off.

“The Court fired a shot across the bow of Congress to say there has to be some limits,” says Robert Percival, a law professor at the University of Maryland.

Five years later, the Rehnquist court struck another blow against federal power, invalidating the broadly popular 1994 Violence Against Women Act, which provided federal remedies for gender-related violence.

Lopez was no one-off. The federalist counterrevolution was on.

Conservation at Risk?

The two cases posed a potential problem for conservation laws, especially the Endangered Species Act. Since most conservation laws were passed in an era when federal power knew few limits, Congress rarely bothered to draw connections to interstate commerce in the text of the statutes. And those connections aren’t always obvious. While some acts of environmental destruction are commercial in nature (industrial dumping), others (shooting a rodent in your backyard) are less so.

Within a couple of years, legal scholars were publishing articles with worrying titles like “After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?” and “Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause?”

The crisis was relatively short-lived, as federal judges uniformly upheld environmental laws (despite occasionally noisy dissents), and the Supreme Court softened the potential impact of its earlier decisions on conservation with a third federalism opinion. In Gonzales v. Raich, the court allowed the federal government to ban the growing of marijuana for private medicinal use, because the prohibition indisputably dealt with the commercial war on drugs.

“You cannot excise individual instances from a statute with a broader regulatory reach,” says William Buzbee, a law professor at Georgetown University Law Center. “The Endangered Species Act has a slew of commerce-linked protections.”

Despite these positive developments, some storm clouds still linger over the Endangered Species Act. Although four federal appellate courts have decided the it is constitutional—even as applied to species existing entirely within one state—they don’t always agree on why. Some judges argue that the preservation of individual species is important to protect either biodiversity or the interconnected web of ecosystems that support our national economy. Other judges focus on the commercial activities of, say, building new housing developments on an endangered animal’s habitat—rather than the decidedly noncommercial species itself.

“The ESA regulates takings, not toads,” one judge famously quipped.

These diverse rationales worry some legal scholars. “Courts have been generally convinced that the take [aka killing] prohibition in the Endangered Species Act must be constitutional, but they haven't been able to figure out why," Case University law professor Jonathan Adler told Greenwire.

The diversity of opinion was even an issue in the confirmation of now Chief Justice John Roberts, who voted (unsuccessfully) to rehear a decision upholding the Endangered Species Act while he was an appeals court judge. Although Roberts told Senator Dianne Feinstein that his vote to rehear the “hapless toad” case was a vote to harmonize the justifications for the act rather than to overturn it, his vote in the case remains a concern for many observers.

Enter the Prairie Dog

The U.S. Fish and Wildlife Service has taken several steps to protect the Utah prairie dog since listing it as endangered in 1973. The current rules prohibit killing, harming, or harassing the animal without a permit, and severely restrict the areas where such permits can be issued. In 2013, the hilariously titled coalition People for the Ethical Treatment of Property Owners (PETPO) filed a lawsuit challenging the constitutionality of the rules. The international advocacy group Friends of Animals intervened in defense of the prairie dog.

Judge Benson’s decision, while not consistent with the existing jurisprudence on the Endangered Species Act, is consistent with his antipathy toward environmentalists. Quoting dissenting judges in previous Endangered Species Act cases, he dismissed evidence that the prairie dog generates tourism revenue and scientific investment. He also rejected the idea that endangered species exist within a larger ecosystem that has commercial relevance, calling the prairie dog’s connection to the economy “too attenuated” for the commerce clause.

In short, Judge Benson believes the Endangered Species Act regulates toads rather than takings.

The legal scholars I spoke with aren’t particularly worried—yet. “This decision is well outside the mainstream,” says Robert Glicksman, a law professor at George Washington University, while the University of Maryland’s Percival calls Benson’s ruling “out of line with many courts higher than his.”

That’s reassuring, but then again, everyone thought the Gun Free School Zones and the Violence Against Women acts were perfectly constitutional—until suddenly they weren’t. Let’s hope the Endangered Species Act doesn’t itself doesn’t end up in need of saving.