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National Association of Home Builders v. Babbitt

United States Court of Appeals for the District of Columbia Circuit · 1997 · Constitutional Law

Constitutional LawCommerce ClauseCommerce ClauseEndangered Species ActESA section 9take prohibitionintrastate specieschannels of interstate commerce

Facts

The Fish and Wildlife Service listed the Delhi Sands Flower-Loving Fly, an insect found only within a small area of California, as endangered, which triggered ESA § 9(a)(1)'s prohibition on taking the species. San Bernardino County had purchased a hospital site containing Fly habitat and altered its plans to avoid taking the Fly, including preserving habitat and a corridor linking habitat areas; it later obtained an incidental take permit for a power substation on some Fly habitat. When the County proposed redesigning a nearby intersection in a way that would drastically narrow the habitat corridor, FWS advised that the redesign would probably cause a prohibited take of the Fly. The plaintiffs then challenged § 9(a)(1) as beyond Congress's Commerce Clause power as applied to this wholly intrastate species and local land use.

Issue

Whether applying ESA § 9(a)(1)'s prohibition on taking endangered species to the Delhi Sands Flower-Loving Fly, a species found only in California, exceeds Congress's power under the Commerce Clause. More specifically, the question was whether this application could be sustained under Lopez as regulation of the channels of interstate commerce or of activities that substantially affect interstate commerce.

Rule

Under the Commerce Clause, Congress may regulate a class of activities if that class falls within a Lopez category, and the de minimis character of an individual instance does not matter. ESA § 9(a)(1)'s prohibition on taking endangered species may constitutionally apply to an intrastate endangered species because takings are part of a class of activities within Congress's commerce power, including regulation of the channels of interstate commerce and regulation of activities whose aggregate effects substantially affect interstate commerce.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Arizona, Desert Crest Development plans to grade private land that contains the last known breeding area of the Copper Ridge beetle, an endangered insect found only near Tucson. A federal statute broadly prohibits any person from "taking" any endangered species anywhere in the United States, and the developer argues the statute is unconstitutional as applied because this one insect has no proven market value and exists only in one state.

How should a court most likely analyze the Commerce Clause challenge under the majority's approach?

Explanation. The majority treated the relevant object of analysis as the regulated class of activities—takings of endangered species—not the economic significance of one species in isolation. Where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances is irrelevant, and courts may consider aggregate effects rather than excising trivial applications.