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 V.14 No.33 | August 18 - 24, 2005 

The Real Side

Do Endangered Species Really Matter?

A Supreme Court shaped by Bush will want to know

What does a wolf matter? What difference would it make if we lost every silvery minnow, Chiricahua leopard frog, checkerspot butterfly, willow flycatcher or any other of New Mexico's endangered species?

More specifically, what do any of those creatures matter to interstate commerce? That question will surely be asked in the United States Supreme Court one day if the Senate confirms John Roberts to replace retiring Justice Sandra Day O'Connor. To protect the laws protecting endangered species, conservationists are going to need a crash course in the Commerce Clause, something many lawyers have forgotten. Here's a very rough introduction, but enough to outline the nature of what's at stake.

This may come as a shock, but the U.S. Constitution does not give Congress authority to protect the environment or save endangered species. What the Constitution empowers Congress to do is regulate interstate commerce. Many of the nation's environmental laws, particularly the Endangered Species Act, owe their existence exclusively to that power.

Not until the time of FDR's New Deal did the Supreme Court accept more than a narrow view of Congress' commerce power. Then it vastly expanded federal power over all aspects of interstate commerce. Virtually anything that affected interstate commerce could be regulated by Washington, as the court demonstrated in a case upholding federal regulation of food grown on a farm for consumption solely by the farmer's family. The court reasoned that the farmer's homegrown food could conceivably affect the supply and demand for agricultural commodities, and therefore it affected interstate commerce and could be reached by Congress.

The current Supreme Court displays an increasingly different mind. Where something involves an obvious commercial transaction, it has been quite consistent in upholding congressional authority. The court ruled that enjoyment of the outdoors in rural Maine was interstate commerce because it drew out-of-state paying tourists. It also overrode state authority to regulate alcohol to permit Internet wine sales.

But this Court also believes Congress may not abuse its Commerce Clause power by reaching conduct that is not, to their mind, truly commerce. And it will not defer to Congressional pronouncements declaring what commerce is. Thus, it struck down the Crimes Against Women Act because it couldn't see how the targeted conduct affected interstate commerce. It also struck down a federal law prohibiting possession of firearms near schools because the connection to interstate commerce was too hypothetical.

Which brings us to the question of how a Supreme Court with a Justice John Roberts will view the Endangered Species Act. His decision in a dispute involving the uncelebrated arroyo toad gives us a very good clue.

The arroyo toad starred in the case of Rancho Viejo LLC v. Norton, decided by the United States Circuit Court of Appeals for the District of Columbia, on which Judge John Roberts sits. A private landowner was prevented from erecting a fence on his land because it would take habitat from the arroyo toad, an endangered species. A three-judge panel ruled for the toad, and the landowner requested what's called an en banc rehearing, meaning consideration by a larger panel of judges. Roberts dissented from the decision denying en banc review.

Roberts' dissent strongly suggests he did not believe Congress could protect the arroyo toad because he did not see how "the taking of a hapless toad, that, for reasons of its own, lives its entire life in California constitutes ... commerce ... among the several states.'"

That's not good news for a creature like the Sacramento Mountains' checkerspot butterfly, which exists only near Cloudcroft, New Mexico, or the silvery minnow, which swims only in limited stretches of our state's portion of the Rio Grande. Even for wolves that roam between Arizona and New Mexico, this line of inquiry bodes trouble. How do wolves substantially affect interstate commerce? You can't buy or sell them. They are not agents of commerce. What difference would it make to interstate commerce if they ceased to exist except in zoos?

These are painful questions for anyone who loves nature for its own sake or believes we are morally obliged to protect God's creation. But those values, however inspiring, aren't legally recognized. And while conservationists abhor the notion that wildlife has anything to do with commerce, survival of many struggling creatures may turn on radically different logic. The Endangered Species Act may fall unless its supporters can satisfy a Supreme Court shaped by George W. Bush that rare critters and obscure plants matter enough to interstate commerce to permit Congress to protect them.

The days of the Endangered Species Act being wielded as a club by environmentalists may be ending. With Roberts' certain confirmation, and more cases like the arroyo toad working their way onto appellate dockets, environmentalists will eventually be preoccupied with worry about their favorite law's fragile clay feet.

The opinions expressed are solely those of the author. E-mail jims@alibi.com.

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