Academic journal article
By Fleming, Jacalyn R.
Albany Law Review , Vol. 65, No. 2
"[E]xamination of the language, history, and structure of the legislation ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." (1)
The federalization of land use controls (2) is largely a product of the environmental movement that accelerated in the 1970s and that resulted in many federal environmental laws effectively limiting the scope of local police powers. (3) One example of this is the Endangered Species Act (ESA). (4) Prior to the 1973 Act, protection for endangered species initially focused on federal agencies and federal lands, but when this proved insufficient the law was expanded to prohibit the taking of all endangered species by any person. (5) Presently, the prohibition on the taking of endangered species implicates local land use planning and development because the definition of taking now includes "`significant habitat modification or degradation that actually kills or injures wildlife.'" (6)
While Congress has a limited ability to regulate the conduct of the states directly, (7) a valid act of Congress is the supreme law of the land and preempts state and local laws and regulations that conflict. (8) Consequently, the courts have regularly rejected legal challenges seeking to invalidate federal laws or regulations that, in effect, preempt local land use controls. (9) For example, in 1981 the Supreme Court announced that the fact that many federal environmental regulations may happen to "pre-empt particular exercises of state police power," including the power to control land use, was simply irrelevant. (10)
Despite this history of deference to Congress, however, the Supreme Court is currently taking a hard look at whether the federal law in question is within Congress's constitutionally delegated authority. (11) Yet in the midst of this states' rights movement, one should remember that there is a need for a national policy in key areas beyond national defense. For instance, federal authority is needed for issues that require a centralized solution due to their national significance.
Environmental regulation is one such area. The centralization of environmental laws has numerous benefits, including uniformity and an increase in the pool of resources available to resolve the problem. (12) Similarly, federal laws are needed to provide minimum standards because states may face strong disincentives to enact or enforce environmental laws. (13) For example, states may focus on the monetary benefits from the added taxes and jobs gained from allowing development while ignoring the less obvious environmental effects such as cumulative impacts. (14) In turn, this may result in a "race to the bottom," where each local jurisdiction chooses short-term economic gain over the long-term health of the nation and the planet. (15)
This comment focuses on the scope of the federal government's power to protect endangered species, including the power to preempt local land use decision-making and limit development of private property. Part I introduces the key parts of the Endangered Species Act that apply to private land and provides an early example of how the Endangered Species Act and its requirement for a habitat conservation plan was applied to a particular private development. (16) The relationship between the historically local nature of land use planning and regulation under the Endangered Species Act is also introduced. (17) Part II considers the constitutional limits of the federal government to regulate under the Commerce Clause generally, and also applies the Commerce Clause analysis to the regulation of endangered species. (18) Part III addresses the treaty power and its potential for providing national power to affect local land use, and briefly discusses federal authority under the Property Clause and preemption analysis. (19) Part IV considers other potential constitutional limits on the federalization of land use control including the Tenth Amendment and the takings clause. …