Does the Endangered Species Act compel states to protect species?

piping_plover_282182756436229Yes, according to a decision issued this week by the Eastern District of New York. In American Bird Conservancy v. Harvey, an environmental group has sued the New York Office of Parks, seeking to compel it to keep cats from Jones Beach State Park. According to the group, the cats are a threat to piping plovers, a threatened species of migratory bird.

The state moved to dismiss the lawsuit, arguing that it can’t constitutionally be compelled to implement federal endangered species policy. It’s right, of course. The Supreme Court has repeatedly recognized that “[n]o matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate.” But the district court disagreed, expressly ruling that the statute imposes an affirmative duty on states to use its regulatory power to protect species.

[T]he Court assumes that the Act imposes on governmental agencies, including the Commissioner, a broad affirmative duty to take such measures as are reasonably necessary to protect threatened species within their jurisdictions. See 16 U.S.C. §§ 1531(a)(4) (declaring that the United States “has pledged itself … to conserve to the extent practicable the various species … facing extinction”); id. § 1531(b) (noting that a primary purpose of the Act is “to provide a program for the conservation of … endangered species and threatened species”); id. § 1532(3) (defining “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary”); see also Tenn. Valley Auth. v. Hill, (noting that “[t]he dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of 1973] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife” (emphasis in original) (citation omitted)); Palila v. Hawaii Dept’ of Land & Natural Resources, (“The Act requires affirmative preservation of an endangered species”).

The court’s analysis skips one obvious step: even if Congress has imposed a duty to protect species on the federal government, nothing the court identifies extends that duty to the individual states. The statutory hook, the “take” prohibition, does not explicitly compel states to affirmatively regulate in furtherance of the statute’s goals. It’s broad, to be sure, but courts should not interpret statutes to alter the balance between the federal government and the states unless Congress makes it “unmistakably clear” that it wishes to do so. It hasn’t and, even if it had, the result would be unconstitutional. The Supreme Court, in New York and Printz, has clearly forbidden the conscription of states and state officials to implement federal policy.

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