Document Type


Publication Title

Environmental Law

Journal Abbreviation

Env't L.


Our 2004 article, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision, analyzed the four federal circuit court cases in which litigants have argued that the take provision of the Endangered Species Act (ESA) is an unconstitutional exercise of Congress's Commerce Clause power. We concluded that the Supreme Court would clearly uphold the constitutionality of the take provision in situations where either the listed species or the activity that caused the take had a substantial effect on commerce in the aggregate. But since adoption of either rationale (or both) would potentially leave species and some takes beyond the scope of federal power, we maintained that a better outcome would result from the Court's approving the comprehensive scheme rationale adopted by the Fourth Circuit in Gibbs v. Babbitt and the Fifth Circuit in GDF Realty v. Norton. Since publication of our article, the Court decided Gonzalez v. Raich, which upheld the constitutionality of the federal Controlled Substance Act as applied to the intrastate production and possession of marijuana. In doing so, the Court ratified the comprehensive scheme principle, holding that the federal regulation of marijuana as a drug was an essential part of a larger regulation of economic activity, which could be undercut unless the intrastate activity were regulated. We think that that this embracing of the comprehensive scheme rationale indicates that the Court would also validate the constitutionality of the ESA's take provision, and this brief comment explains why. We also include an addendum predicting that John Roberts' ascension to the Court will not cause a rethinking of the Raich rationale, despite his dismissive reference to the arroyo toad in his dissent from the D.C. Circuit's denial of rehearing in the Rancho Viejo v. Norton case.

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