National Ass'n of Home Builders v. Babbitt

KAREN LECRAFT HENDERSON, Circuit Judge,

concurring:

I agree with Judge Wald’s conclusion that the “taking” prohibition in section 9(a)(1) of the Endangered Species Act (ESA) constitutes a valid exercise of the Congress’s authority to regulate interstate commerce under the Commerce Clause. 1 I cannot, however, agree entirely with either of her grounds for reaching the result and instead arrive by a different route.

Judge Wald first asserts that section 9(a)(1) is a proper regulation of the “channels of commerce.” In support she cites decisions upholding regulation of commercially marketable goods, such as machine guns and *1058 lumber, 2 and public accommodations. 3 In each ease, the object of regulation was necessarily connected to movement of persons or things interstate and could therefore be characterized as regulation of the channels of commerce. Not so with an endangered species, as the facts here graphically demonstrate. The Delhi Sands Flower-Loving Flies the Department of the Interior seeks to protect are (along with many other species no doubt) entirely mfrastate creatures. They do not move among states either on their own or through human agency. As a result, like the Gun-Free School Zones Act in Lopez, the statutory protection of the flies “is not a regulation of the use of the channels of interstate commerce.” 514 U.S. at 559, 115 S.Ct. at 1630.

Judge Wald also justifies the protection of endangered species on the ground that the loss of biodiversity “substantially affects” interstate commerce because of the resulting loss of potential medical or economic benefit. Yet her opinion acknowledges that it is “impossible to calculate the exact impact” of the economic loss of an endangered species. Wald Op. at 1053. As far as I can tell, it is equally impossible to ascertain that there will be any such impact at all. It may well be that no species endangered now or in the future will have any of the economic value proposed. Given that possibility, I do not see how we can say that the protection of an endangered species has any effect on interstate commerce (much less a substantial one) by virtue of an uncertain potential medical or economic value. Nevertheless, I believe that the loss of biodiversity itself has a substantial effect on our ecosystem 4 and likewise on interstate commerce. In addition, I would uphold section 9(a)(1) as applied here because the Department’s protection of the flies regulates and substantially affects commercial development activity which is plainly interstate.

First, I agree with Judge Wald that biodiversity is important to our understanding of ESA and its relation to interstate commerce. As Judge Wald’s opinion notes:

Every species is part of an ecosystem, an expert specialist of its kind, tested relentlessly as it spreads its influence through the food web. To remove it is to entrain changes in other species, raising the populations of some, reducing or even extinguishing others, risking a downward spiral of a larger assemblage.

Wald Op. at 1052 n. 11 (quoting Edward O. Wilson, The Diversity of Life 308 (1992)). The effect of a species’ continued existence on the health of other species within the ecosystem seems to be generally recognized among scientists. See Stephen M. Johnson, United States v. Lopez: A Misstep, but Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. Envtl. L.J. 33 , 79 (1996) (“It is a fundamental principle of ecology that ecosystems are composed of interdependent parts that play vital roles in preserving the ecosystem. As an ecosystem becomes less diverse, it becomes less adaptable to stresses that are placed on it.”) (footnotes omitted); Myrl L. Duncan, Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis, 26 Envtl. L. 1095 , 1129 (1996) (“[SJcientists have rediscovered that the world cannot meaningfully be broken down into isolated parts, that every part is connected to every other part. Perhaps the strongest statements about interconnectedness come from scientists, scholars, and regulators- working in the field of conservation biology who are critical of the species-by-species, reaction-to-crisis approach taken by the Endangered Species Act. They understand that species protection issues cannot be separated from those of ecosystem health.”) (footnotes omitted). *1059 Some studies show, for example, that the mere presence of diverse species within an ecosystem (biodiversity) by itself contributes to the ecosystem’s fecundity. See Yvonne Baskin, Ecologists Dare to Ask: How Much Does Diversity Matter? 264 Science 202 (1994). The Congress recognized the interconnection of the various species and the ecosystems when it declared that the “essential purpose” of ESA, which protects endangered species, is in fact “to protect the ecosystem upon which we and other species depend.” H.R.Rep. No. 93-412, at 10 (1973); see also 16 U.S.C. § 1531 (finding that endangered species “are of aesthetic, ecological, educational, historical, recreational, and scientific value”) (emphasis added); cf. 16 U.S.C. § 1361 (5)(B) (congressional finding in support of Marine Mammal Protection Act of 1972 that “marine mammals ... affect the balance of marine ecosystems in a manner which is important to other animals and other animal products which move in interstate commerce, and that the protection and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate commerce”). Given the interconnectedness of species and ecosystems, it is reasonable to conclude that the extinction of one species affects others and their ecosystems and that the protection of a purely intrastate species (like the Delhi Sands Flower-Loving Fly) will therefore substantially affect land and objects that are involved in interstate commerce. There is, therefore, “a rational basis” for concluding that the “taking” of endangered species “substantially affects” interstate commerce so that section 9(a)(1) is within the Congress’s Commerce Clause authority. See Lopez, 514 U.S. at 557-59, 115 S.Ct. at 1629. The interstate effect of a taking is particularly obvious here given the nature of the taking the County proposes. In enacting ESA, the Congress expressed an intent to protect not only endangered species but also the habitats that they, and we, occupy. See H.R.Rep. No. 93-412, at 10 (1973) (identifying ESA’s “essential purpose” as “to protect the ecosystem upon which we and other species depend”); S.Rep. No. 93-307 at 4, U.S.Code Cong. & Admin. News at 2989, 2992 (“Often, protection of habitat is the only means of protecting endangered animals which occur on nonpublic lands.”); Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703-09 , 115 S.Ct. 2407, 2416-18 , 132 L.Ed.2d 597 (1995) (statutory definition of “take” as “harm” encompasses habitat modification). At the same time, the Congress expressly found that “economic growth and development untempered by adequate concern and conservation” was the cause for ‘Various species of fish, wildlife, and plants in the United States hav[ing] been rendered extinct.” 16 U.S.C. § 1531 (a)(1). It is plain, then, that at the time it passed ESA the Congress contemplated protecting endangered species through regulation of land and its development, which is precisely what the Department has attempted to do here. Such regulation, apart from the characteristics or range of the specific endangered species involved, has a plain and substantial effect on interstate commerce. In this case the regulation relates to both the proposed redesigned traffic intersection and the hospital it is intended to serve, each of which has an obvious connection with interstate commerce. See Terry v. Reno, 101 F.3d 1412, 1416-17 (D.C.Cir.1996) (concluding abortion clinic activities substantially affect interstate commerce); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 271 , 85 S.Ct. 348, 364-65 , 13 L.Ed.2d 258 (1964) (concluding that “facilities and instrumentalities used to carry on [interstate] commerce, such as railroads, truck lines, ships, rivers, and even highways are also subject to congressional regulation, so far as is necessary to keep interstate traffic upon fair and equal terms”) (emphasis added). 5 Insofar as application of section 9(a)(1) of ESA here acts to regulate commercial development of the land inhabited by the endangered species, “it may ... be reached by Congress” because “it asserts a substantial economic effect on interstate commerce.” Wickard v. Filburn, 317 U.S. 111, 125 , 63 S.Ct. 82, 89 , 87 L.Ed. 122 (1942), quoted in United States v. Lopez, 514 U.S. *1060 549, 556 , 115 S.Ct. 1624, 1628 , 131 L.Ed.2d 626 (1995). 6

For the preceding reasons I believe that the Department of the Interior’s regulation of the County’s proposed “taking” of the endangered Delhi Sands Flower-Loving Fly, pursuant to section 9(a)(1) of ESA, is a lawful exercise of governmental authority under the Commerce Clause. 7

. It is beyond question that the development San Bernardino County proposes is not only a "discomfit[ure]”of the Delhi Sands Flower-Loving Fly, see Dissent at 1060, but also a "taking” within the meaning of ESA, see Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 691 , 115 S.Ct. 2407, 2409-10 , 132 L.Ed.2d 597 (1995) (upholding Department of Interior’s interpretation in 50 C.F.R. § 17.3 of statutory definition of "take" to include "an act which actually kills or injures wildlife,” which "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering”). Further, the extent of inconvenience the County experiences if the unlawful taking is prevented, see Dissent at 1060-1061, is *1058 irrelevant so long as the prevention is authorized under the Commerce Clause.

. United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Darby, 312 U.S. 100 , 61 S.Ct. 451 , 85 L.Ed. 609 (1941).

. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 , 85 S.Ct. 348 , 13 L.Ed.2d 258 (1964).

.An ecosystem consists of "[t]he organisms in a community plus the associated abiotic factors with which they interact.” Helena Curtis & N. Sue Barnes, Biology glossary at G-7 (5th ed.1989).

. In light of these authorities I cannot agree with my dissenting colleague that “[t]he activity regulated in the present case involves” only "local land use.” Dissent at 1064.

. The dissent suggests this justification has no "stopping point" as required by Lopez. See Dissent at 1064-1065; Lopez, 514 U.S. at 564 , 115 S.Ct. at 1632 . In Lopez the Court was concerned that the "theories” offered by the government would authorize regulation of "all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce" and “any activity that it found was related to the economic productivity of individual citizens." Id. The rationale on which I rely permits regulation only of activities (including land use) that adversely affect species that affect, or are involved in, interstate commerce.

. In so concluding, I note that neither the Supreme Court nor any circuit court has used Lopez to strike down an attempted regulation outside the criminal arena. For cases rejecting post- Lopez challenges to noncriminal statutes, see Wald Op. at 1064-1065.