How should environmentalists feel about the Constitution?

The environmental movement is young by constitutional standards, gaining steam in the early 20th century and becoming a powerful political force after the first Earth Day in 1970. The men who drafted and approved the U.S. Constitution 230 years ago gave little thought to the concerns that animate the environmental movement today. Thus, it should come as little surprise that the document contains nary a word about the federal government’s role in protecting clean water, clean air, or endangered species. The Constitution does make abundantly clear, however, the consequence of that silence.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today, People for the Ethical Treatment of Property Owners filed a petition asking the Supreme Court to hear a constitutional challenge to the Endangered Species Act. The Utah prairie dog, a species of rodent found only in southwestern Utah, that has long been a source of outrage and conflict in the region but has no market or any economic activity involving it. Yet federal bureaucrats claim the Commerce Clause authorizes them to broadly forbid “take”—any activity that affects a single member of the species. The federal prohibition is so broad that it makes it a federal crime for a state biologist to move a prairie dog from a residential neighborhood, an airport, and a cemetery to state conservation lands.

[The Congress shall have Power] To regulate Commerce . . . and among the several States . . .

The Commerce Clause has been one of the most hotly contested provisions of the Constitution. Originally, it was understood to merely authorize the federal government to regulate trade across state boundaries. The Supreme Court has interpreted that clause expansively over the last century, which has allowed the federal government—particularly the administrative state—to grow beyond the wildest dreams of the men who wrote the Constitution. But the Court has never allowed it to be a blank check. So far, it has only allowed the federal government to regulate economic activity with an effect on interstate commerce.

The two Supreme Court cases that have gone the furthest have been Wickard v. Filburn and Gonzales v. Raich, which concerned regulation of the local production of wheat and marijuana, respectively, both of which affect an interstate market for those commodities. The Court has twice struck down federal laws that regulated noneconomic activity that does not affect interstate commerce. The take prohibition regulates noneconomic activity and, for species like the Utah prairie dog, that activity does not substantially affect interstate commerce. Thus, it is beyond Congress’ constitutional power.

Why should environmentalists care about the constitutionality of environmental regulations? If your driving concern is protecting the environment, don’t the ends justify the means? Au contraire, accepting the inevitable result of the Constitution’s written words has several laudable environment benefits.

First among them is that the status quo isn’t so great. The Endangered Species Act’s success rate is an abominable sub-2%. The Constitution leaves much of environmental protection to the states, which are able to experiment with novel approaches. That process reveals which approaches work and which don’t. [More on that later this week.]

Second, a constitutional decision will force an update to the way endangered species are protected. The current version of the Endangered Species Act is essentially set in stone, regardless how ineffective it is. It creates a direct, financial interest for many groups to fight to preserve the status quo, no matter it’s environmental impacts. As a result, any modification of the current regulations—whether advocated by President Trump or the liberal President Obama—-are opposed as an extreme, radical, beyond-the-bend, abandonment of any commitment to protecting the environment, and any other over-the-top rhetoric people can think of.

Finally, enforcing the constitution’s limits is an opportunity to introduce more free market environmental ideas into wildlife policy. The Endangered Species Act’s basic approach has not been changed since the early 70s. We’ve learned a lot about both the environment and incentives since then. It’s time for a free start.


  1. Judging from the way the ESA is consistently interpreted and implemented by the U.S. Fish and Wildlife Service, one could infer that the purposes of the law are twofold; to eliminate private property and to perpetually expand the size and power of the U.S.Fish and Wildlife Service. The “best available science” consistently cherry-picked by the agency is any fairy tale, claim, model or study that justifies expansion of the agency and maximizes its geographical domain. The Constitution has no influence in any part of it, especially that pesky takings clause in the 5th Amendment.


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