The Supreme Court this morning declined to review a Ninth Circuit decision finding that regulation of the delta smelt under the Endangered Species Act does not violate the Constitution's Commerce Clause.
Did the Ninth Circuit err in holding that, under this Court’s decision in Gonzales v. Raich, the Endangered Species Act is a comprehensive regulatory scheme that “bears a substantial relation to commerce,” even though the Endangered Species Act, unlike the Controlled Substances Act in Raich, is not a market regulatory scheme that governs quintessentially economic activities?
The Ninth Circuit found that "the growers’ as-applied Commerce Clause challenge to ESA §§ 77 and 9 fails because the ESA “bears a substantial relation to commerce.” Gonzales v. Raich, 545 U.S. 1, 17 (2005).
Defenders of Wildlife senior attorney Jason Rylander, who filed an amicus brief on behalf of Defenders, the Institute for Fisheries Resources, and the Pacific Coast Federation of Fishermen’s Associations, had this to say:
“Six times now, the Supreme Court has rebuffed radical special interest attacks on the constitutionality of the Endangered Species Act. The ESA properly protects all species because of their actual and potential biological, economic, and aesthetic values. There can be no doubt that the Commerce Clause provides Congress ample authority to protect America’s wildlife heritage.”
Rylander noted that five separate courts of appeal in six cases have found the ESA constitutional. The citations (with links to follow) are:
- Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F. 3d 1250 (11th Cir. 2007), cert. denied, 552 U.S. 1097 (2008)
- GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005)
- Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004) (Supreme Court petition) (Denial of rehearing by D.C. Circuit)
- Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied sub nom., Gibbs v. Norton, 531 U.S. 1145 (2001)
- Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 104 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998). (we need to find this one)