Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause?

Posted: 8 Nov 2001  

Bradford C. Mank

University of Cincinnati - College of Law

Date Written: October 16, 2001

Abstract

In the Lopez and Morrison decisions, the Supreme Court for the first time in sixty years found federal statutes exceeded the scope of the Commerce Clause. Both decisions were especially concerned with federal statutes that impinged on areas of traditional state authority such as criminal law. During 2001, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), while not directly addressing the scope of the Commerce Clause, the Court's narrow interpretation of the Clean Water Act to exclude regulation of intrastate isolated wetlands reflected its concern that the Corps' broader interpretation would "alter[] the federal-state framework by permitting federal encroachment upon a traditional state power."

The Endangered Species Act is likely to raise concerns under a narrow interpretation of the Commerce Clause because the statute regulates numerous intrastate species that have little commercial value and affects individual landowners. This Article contends that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been more a federal than a state function. Additionally, federal regulation of endangered or threatened species does not undermine states' traditional role in regulating non-threatened species. Finally, the preservation of endangered or threatened species serves long-range national economic interests in preserving biodiversity and potentially valuable genetic material that deserve deference from courts even though their exact value is unknowable at the present. Applying a rational basis test, courts should defer to Congress' goal of preserving our genetic and biological heritage as a reasonable policy substantially advancing America's long-term commercial goals. In light of their concurring opinion in Lopez and support for protection of endangered species on private lands in Babbitt v. Sweet Home, the Article suggests that Justices O'Connor and Kennedy are key swing votes who may take a more deferential approach to federal regulation of intrastate endangered species under the Commerce Clause.

Suggested Citation

Mank, Bradford C., Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause? (October 16, 2001). Georgia Law Review, Vol. 36, 2002. Available at SSRN: https://ssrn.com/abstract=287467

Bradford C. Mank (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)

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