TITLE

The Latest and Greatest Commerce Clause Challenges to the Endangered Species Act: Rancho Viejo and GDF Realty

AUTHOR(S)
Van Loh, Sara D.
PUB. DATE
August 2004
SOURCE
Ecology Law Quarterly;2004, Vol. 31 Issue 3, p459
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
Since its enactment in 1973, the Endangered Species Act (ESA) has enjoyed considerable judicial deference, yet attacks on its constitutionality have arisen recently in the wake of Lopez and Morrison. In the latest cases, Rancho Viejo and GDF Realty, the D.C. and Fifth Circuits considered Commerce Clause attacks on the ESA. While both upheld the ESA, the courts used different rationales, diverging in their definition of the "regulated activity" for the purpose of ascertaining the impact on interstate commerce. This note concludes that Congress does and should have the authority to regulate intrastate species pursuant to its Commerce Clause powers, under the theory that deleterious effects on biodiversity substantially affect interstate commerce. Furthermore, Congress has the authority to regulate when a "race to the bottom" between states is likely to occur.
ACCESSION #
15590896

 

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