Constitutionality of Endangered Species Act (ESA) Restrictions

Unlikely as it may seem, the constitutionality of certain of the ESA's core restrictions is still being questioned nearly three decades after its enactment. The U.S. Supreme Court's willingness to reexamine the scope of federal authority under the U.S. Constitution's Commerce Clause since United States v. Lopez¹ has put the ESA in the cross hairs for the following reasons: (1) most endangered species occur only within a single state, (2) relatively few endangered species have commercial value that make them the object of interstate commerce, and (3) most, if not all, of the activities that the ESA prohibits, especially those that run afoul of its prohibition against "taking" protected animals, could be characterized as essentially local, and many of those activities are not economic in character.

The D.C. Circuit faced the first of the Commerce Clause challenges to the ESA in 1997. In National Ass'n of Home Builders v. Babbitt,² the D.C. Circuit considered whether the ESA's prohibition against taking the Delhi Sands flower-loving fly, an endangered insect that is found only in California and that has itself never been the object of interstate commerce (apart from a handful of instances involving specialist collectors), exceeded the constitutional authority of the federal government. Although the court upheld the law against this challenge, it split two to one, and the two judges who ruled in support of the law were unable to agree upon a rationale for doing so.