On Monday, the Supreme Court denied cert in Rancho Viejo v. Norton, an unsuccessful commerce clause challenge to regulation of activities allegedly harmful to the Arroyo toad under the Endangered Species Act (ESA) brought in the U.S. Court of Appeals for the D.C. Circuit. The next such case to go up for cert will be GDF Realty v. Norton, a challenge to ESA regulations protecting several subterranean insect species (“Cave Species”) found only in several caves near Austin, Texas.
A three judge panel of the U.S. Court of Appeals unanimously rejected the commerce clause challenge last summer. This past week, the Fifth Circuit voted to deny rehearing en banc. Six judges dissented, led by Judge Edith H. Jones who wrote the dissent. Judge Jones ably dissects the panel’s opinion, demonstrating not only that the Fifth Circuit’s application of the commerce clause to the ESA is internally inconsistent, but also that the various rationales adopted by the various Circuit Court’s in rejecting commerce clause challenges to the ESA are analytically incompatible. The opinion was joined by Judges Jolly, Smith, Demoss, Clement, and Pickering.
The opinion is not yet available on the Fifth Circuit’s website, but should be posted shortly. In the meantime, here are some excerpts:
The panel holds that because “takes” of the Cave Species ultimately threaten the “interdependent web” of all species, their habitat is subject to federal regulation by the Endangered Species Act. Such unsubstantiated reasoning offers but a remote, speculative, attenuated, indeed more than improbable connection to interstate commerce. Chief Justice Marshall stated in Cohens v. Virginia, 19 U.S. 264 (1821), that Congress has no general right to punish murder or felonies generally. Surely, though, there is more force to an “interdependence” analysis concerning humans, and thus a more obvious series of links to interstate commerce, than there is to “species.” Yet the panel’s “interdependent web” analysis of the Endangered Species Act gives these subterranean bugs federal protection that was denied the school children in Lopez and the rape victim in Morrison. . . .
In the end, the panel is unable to refute the attenuation concern of Lopez and Morrison because its analysis rests on the false implication that all takes of all species necessarily relate to an ecosystem, which by its very grandiosity must at some point be “economic” in actuality or effect. This is precisely the reasoning rejected by the Supreme Court. Not all crime is “economic” for commerce clause purposes, in actuality or effect, even though any or all of its human victims may be become impoverished. Not all crimes against women are “economic” in practicality or effect, despite the same possible consequences. The Commerce Clause does not regulate crime, sexual inequity, or ecosystems as such – it regulates commerce. Thus, I reiterate: many applications of the ESA may be constitutional, but this one simply goes too far. To be faithful to the Supreme Court’s principles in Lopez and Morrison and this court’s Commerce Clause decisions, we should rehear this case en banc.
Rancho Viejo also prompted dissents from denial of rehearing en banc. Those opinions are available here.
UPDATE: Howard Bashman has posted a PDF of the dissent here.
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