Is the Endangered Species Act Constitutional? How the Utah Prairie Dog Case May Impact California

by Eric Biber^* and Elise O’Dea^**

INTRODUCTION: SIX COURTS OF APPEALS HAVE UPHELD THE CONSTITUTIONALITY OF THE ESA

The federal Endangered Species Act (ESA) is well-known to California environmental lawyers as one of the most important environmental laws—federal or state—on the books. The ESA has broad regulatory reach—everything from water diversions to greenhouse gas emissions to land development could theoretically come within the scope of the law. It also includes potentially stringent regulatory standards—for instance, ESA section 7, which prohibits federal actions that "jeopardize" the existence of species listed for protection under the Act, has only one convoluted and little-used exemption process.¹ And, given the number of species in California listed for protection under the Act (at last count, 321 species of plants and animals²), there is great potential for the ESA to be applied to private and public actors.

But as with all federal laws, the ESA must be grounded in federal constitutional authority that justifies congressional action. When the ESA was enacted in the early 1970s, courts, legislators, and legal scholars assumed that Congress had broad authority to regulate environmental issues under the Commerce Clause, which states that Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."³ Beginning with the New Deal era of the 1930s, there was a broad consensus that Congress had wide latitude to regulate even individually small activities that occurred within one state because of the possible impacts of those activities on interstate commerce.⁴