Flies, Wolves, Spiders, Toads, and the Constitutionality of the Endangered Species Act's Take Provision

54 Pages Posted: 19 May 2004

See all articles by Michael C. Blumm

Michael C. Blumm

Lewis & Clark College - Lewis & Clark Law School; Lewis & Clark College Paul L Boley Library

George A. Kimbrell

Center for Food Safety

Abstract

The Endangered Species Act's prohibition against taking listed species has been the statute's most controversial provision because it can impose restrictions on private property. ESA opponents have mounted repeated attacks against the take provision, claiming that it exceeds Congress's constitutional authority under the Commerce Clause. These attacks have not succeeded: four federal appellate decisions have upheld the provision's constitutionality, but they have employed strikingly different reasoning in doing so. This Article evaluates each of these decisions and considers whether the Supreme Court would affirm and, if so, on what ground. The Article predicts that the Court would uphold the ESA's take provision as having a sufficient commercial nexus under the Commerce Clause; that is, the statute is a comprehensive economic regulatory scheme aimed at preserving the economic benefits of biodiversity and avoiding economically destructive intrastate competition.

Keywords: Endangered Species Act, Constitutional law, Commerce Clause

JEL Classification: K11, K32

Suggested Citation

Blumm, Michael C. and Kimbrell, George A., Flies, Wolves, Spiders, Toads, and the Constitutionality of the Endangered Species Act's Take Provision. Environmental Law, Vol. 34, p. 309, 2004, Available at SSRN: https://ssrn.com/abstract=547602

Michael C. Blumm (Contact Author)

Lewis & Clark College - Lewis & Clark Law School ( email )

10101 S. Terwilliger Boulevard
Portland, 97219-7762

Lewis & Clark College Paul L Boley Library ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

George A. Kimbrell

Center for Food Safety ( email )

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