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

Contributor Roles

George Kimbrell, J.D. candidate 2004, Lewis & Clark Law School

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Environmental Law

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Env't L.


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.

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