September 2009, Volume 95, Issue 5
The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act
by Scott Schwartz
95 Va. L. Rev. 1325 (2009)
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The Endangered Species Act (ESA), first passed in 1973, is possibly the most wide-ranging of the protective environmental statutes. Grounded in Congress’s ability to regulate interstate commerce, it purports to protect biodiversity by keeping animal species from going extinct. Although there have been numerous challenges to the ESA on the basis that it goes beyond Congress’s power under the Commerce Clause, all of these were narrowly defeated in the Courts of Appeals. With the recent appointments to the Supreme Court, however, the Act remains vulnerable. Shifting the Act to focus on ecosystems, rather than on individual species, could insulate it from additional federalism challenges. Ecosystems are more directly tied into interstate commerce and the economy than individual species through a number of factors, including “ecosystem services.” Since biodiversity is important to maintaining ecosystem health, Congress could still protect endangered species as a part of ecosystems while maintaining a link to interstate commerce. Although this could lead to some changes in scope to the Act, it remains the most faithful way to keep Congress’s intention of protecting biodiversity, but still avoiding constitutional concerns.
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