Commerce Clause Challenges to the Listing of Intrastate, Noncommercial Species Under the Endangered Species Act

October 1, 2006

Robert P. Fowler, Jeffrey H. Wood, Thomas L. Casey

In the early 1970s, Congress considered a series of bills aimed at instituting a federal system of land use management. These efforts ultimately failed as a result of legitimate fears associated with federal encroachment into this area of traditional state control. As we have since come to learn, the Endangered Species Act of 1973 (“ESA”) is a modern-day Trojan horse. Like the Greek’s gift to the City of Troy, this species protection program was at first wellreceived as Congress voted almost unanimously to enact
the ESA. After all, it only gave federal agencies control where listed species or their habitats were concerned. Less than 100 species were on the 1973 version of the Endangered Species List—a list that was dominated by megafauna such as the red wolf, bald eagle, and peregrine falcon.

Commerce Clause Challenges to the Listings of Intrastate, Noncommercial Species Under the Endangered Species Act