Topic: Endangered Species Act & Interstate Commerce
Senator: Feinstein
Date: SEPTEMBER 14, 2005
Contents
FEINSTEIN: I want to go back to hapless toad. It still bothers me.
I asked you some questions about it yesterday. Let me ask you instead -- I'm trying to get at it one way or another -- the factors you would consider in making determinations on the scope of congressional power under the commerce clause.
In Viejo, you addressed whether the survival of the endangered toad substantially affects interstate commerce, rather than looking at whether the cumulative impact of the survival of all endangered species substantially affects interstate commerce.
In the National Association of Home Builders v. Babbitt, a case you call into question in Rancho Viejo, the D.C. Circuit followed the Wickard cumulative test and looked at whether the protection of all endangered species substantially impacts interstate commerce.
The D.C. Circuit noted that although it's difficult to know the commercial impact of an individual species, in the aggregate we can be certain that the extinction of species and the attendant decline in biodiversity will have a real and predictable affect on interstate commerce.
In order to determine whether the Endangered Species Act regulates activity that substantially affects interstate commerce, should the courts look at the impact on interstate commerce of each individual species or the cumulative impact of all species that are protected?
Do you think you can answer that?
ROBERTS: I can, Senator.
But I do need to clarify. At the beginning you said something that -- what I did in the Rancho Viejo case, and that was not what I did.
FEINSTEIN: OK.
ROBERTS: The only thing that I did in my opinion -- and, again, there was another opinion that analyzed it and made a determination of whether it was constitutional -- I did not join that opinion determining that it was unconstitutional.
I simply said that we need to look at these other grounds on which to sustain the Endangered Species Act; we should consider it en banc.
There was another court suggesting that our approach was inconsistent with the Supreme Court opinions.
When I was confirmed for the Court of Appeals, everybody wanted to know, will you follow the Supreme Court opinions, and I told you I would. And here we have a court of appeals suggesting you're not following them.
ROBERTS: And I said, well, let's take the case en banc. I did not state an opinion on whether the commerce clause requirement was satisfied or not. I said, let's take it en banc and consider these other grounds.
The other grounds went to precisely the issue and the question that you asked. If we had looked at it under the other grounds, which was the commercial activity surrounding the endangered species -- and, in other words, the issue that one other court of appeals had said, for example, there is commercial activity surrounding endangered species that takes place nationwide, not limited to where the particular species is, and that would satisfy the commercial activity requirement and allow the court to apply Wickard under the Supreme Court's precedents.
FEINSTEIN: Which is tough duty, when you get down to, let's say, a really endangered species, where you have very few of the species remaining. Perhaps they had been in a number of different states.
ROBERTS: That was the problem that was presented, as my opinion tried to set forth, that's the problem that was presented with the approach that the panel took.
And I thought we ought to rehear it and look at these other grounds where you don't have to ask whether there's impact on interstate commerce from the particular species -- the very point you were making.
FEINSTEIN: Let me tell you what's bothering me, is that it sets a prelude for the Clean Water Act and the Clean Air Act.
ROBERTS: Well, in those areas, again, the commercial impact of pollution, those are things that I think are not going to present as difficult an issue remotely as if you look at each individual species.
The whole point of my argument in the dissent was there was another way to look at this that would allow you to not have to look at the interstate impact of the one particular species.
There were grounds that the court in the panel opinion said they did not have to reach because they had taken this other approach that the Fifth Circuit was suggesting was inconsistent with our approach.
And all I said -- and, again, it's important to recognize -- I did not say that even in this case that the decision was wrong, that it was unconstitutional. Another judge dissenting did say that. I did not join that opinion.
I simply said, let's look at these other grounds for decision, because that doesn't present this problem.
FEINSTEIN: Thank you for clearing that up. I appreciate it.
ROBERTS: Thank you, Senator.
FEINSTEIN: Thank you.
SPECTER: Thank you, Senator Feinstein.
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