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National Ass'n of Home Builders v. Babbitt

Citation: 28 ELR 20403
(12/05/1997)

The court holds that Endangered Species Act (ESA) § 9(a)(1)'s application to a fly that exists only in California is within Congress' Commerce Clause power. The court first holds that the application of ESA § 9 to the fly can be viewed as a proper exercise of Congress' Commerce Clause power over activity categorized as the use of the channels of interstate commerce for two reasons. First, the prohibition against takings of an endangered species is necessary to enable the government to control the transport of the endangered species in interstate commerce, because one of the most effective ways to prevent traffic in endangered species is to secure the habitat of the species from predatory invasion and destruction. Second, the prohibition on takings of endangered species falls under Congress' authority to keep the channels of interstate commerce free from immoral or injurious uses. Here, Congress is using this authority to prevent the eradication of an endangered species by a hospital that is presumably being constructed using materials and people from outside the state and that will attract employees, patients, and students from both inside and outside the state. The court then holds that the prohibition can also be viewed constitutionally as regulating an activity that substantially affects interstate commerce for two primary reasons. First, the provision prevents the destruction of biodiversity and thereby protects the current and future interstate commerce that relies upon it. Nearly one-half of all threatened and endangered species are found only in one state. And each time a species becomes extinct, the pool of wild species diminishes, having a substantial effect on interstate commerce by diminishing a natural resource that could otherwise be used for present or future commercial purposes. Second, the provision controls the adverse effects of interstate competition that would result from the state adopting lower standards of endangered species protection in order to attract development. Thus, ESA § 9(a)(1)'s application to the fly is constitutional.

[The district court's decision in this litigation is published at 27 ELR 20707.]

Counsel for Appellants
Thomas C. Jackson
Kelley, Drye & Warren
1200 19th St. NW, Ste. 500, Washington DC 20036
(202) 955-9600

Counsel for Appellees
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle and Henderson, JJ.