http://www.heartland.org/Article.cfm?artId=22939 U.S. Supreme Court to Decide Whether ESA Listing Exceeds Federal Power by E. Jay Donovan, Environment News April 1, 2008, The Heartland Institute

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The U.S. Supreme Court has agreed to decide whether the Interstate Commerce Clause of the U.S. Constitution gives the federal government authority to regulate Alabama sturgeon under the Endangered Species Act.

A lawsuit contending the federal government overstepped its bounds in seeking to regulate Alabama sturgeon was filed by attorneys with the Pacific Legal Foundation (PLF), an organization that litigates on behalf of property owners against government overreach. PLF attorneys represent the Alabama-Tombigbee Rivers Coalition, an alliance of Alabama businesses, agricultural associations, and other water users who would be adversely affected by federal regulation.

The Supreme Court announced on January 4 its decision to hear the case.

No Interstate Connections

Critical to the issue of federal oversight authority is the fact that the Alabama sturgeon is not found outside of limited areas in Alabama and is not used for any commercial purpose.

"We are very gratified that the Supreme Court has accepted this case, which raises major constitutional questions about the appropriate limits of federal power," said M. Reed Hopper, an attorney with Pacific Legal Foundation.

"Does federal power to regulate commerce among the states extend to purely local land and water use matters, and local species, that don't have a role in interstate commerce?" Hopper asked. "Will a balance of power between federal and state authority continue to be a meaningful concept in our constitutional system? That is what is at stake in this case."

Clarifying Prior Decisions

The U.S. Court of Appeals for the 11th Circuit upheld the federal listing of the Alabama sturgeon in a 2007 case. In asking the Supreme Court to review that decision, PLF cited Supreme Court decisions in 1995 and 2000 that set limits on federal regulatory powers. In both of the cases cited, the Court ruled the federal government did not have authority to regulate things that did not flow through or substantially affect interstate commerce.

PLF argues none of the prongs of the Court's "substantially affects" test is satisfied in this case.

According to PLF, the Alabama sturgeon listing has nothing to do with economic activity; doesn't include any limiting principle that would confine federal regulation to interstate commerce; makes no express findings that show a relationship between the listing and interstate commercial activity; and provides no clear, demonstrated link between the Alabama sturgeon and interstate commerce.

"[I]f the federal government can regulate a wholly intrastate, noncommercial species, and its habitat ... there is no activity that the government could not regulate," states the PLF petition.

National Impact

"There's a clear need for the Supreme Court to address the questions raised by our petition," Hopper said. "The impacts are national in scope--as many as half of the estimated 1,300 species listed under the ESA are found on private property. So the federal government is regulating a vast number of species--and a vast amount of privately owned land--without clear justification under the Commerce Clause of the Constitution.

"Lower courts have been unable to agree on a constitutional rationale to support the ESA. And the fundamental concept that our federal government is one of limited powers must be preserved and protected," Hopper concluded.

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E. Jay Donovan (ejd38@hotmail.com) is a freelance writer based in Tampa, Florida.