District court strikes down endangered species protections for exceeding the scope of federal power

[Valin]

Washington Post:

Jonathan H. Adler

November 5 2014

 

This afternoon a district court in Utah held that the federal prohibition against “taking” Utah prairie dogs — listed as “threatened” under the Endangered Species Act — exceeds the scope of federal power under the Commerce and Necessary and Proper clauses. Here is how Judge Dee Benson summarized his conclusion in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service:

 

 

 

Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.

 

This decision is significant if for no other reason that it is the first time that a federal court has held that the regulation of private land use exceeds the scope of Congress’s enumerated powers. Judge Benson is not the first judge to have reached this conclusion, however, as the question has split several Circuit courts. Commerce Clause challenges to ESA regulation have produced divided panels on the Fourth, Fifth and D.C. Circuits. Moreover, although these circuits all reached the same conclusion, they adopted conflicting rationales, a point noted by then-judge John Roberts in his first opinion on the D.C. Circuit. For those interested, I discussed these cases and their conflicting rationales in this article in the Iowa Law Review (pp. 406-417).

 

(Snip)

 

H/T Power Line