It’s All In How You Spin It…

After reading a recent blog, “Delta Smelt Get Life From Supreme Court” by Earth Justice contributor John McManus, which described the Supreme Court’s “big rebuff” of a non-profit’s challenge to the constitutionality of the extension of endangered species protection under the Commerce Clause (a power related to interstate commerce) to a species that was limited to a geographic region in one state, I decided to actually read the case. To my shock and amazement (not really), I discovered that McManus’s characterizations of the case were hardly accurate.
While ultimately the Court did conclude that the challenge to the extension of commerce power failed as “ ESA is “substantial[ly] relat[ed]” to interstate commerce and, thus, the Growers’ as applied
challenge to ESA §§ 7 and 9 fails”, the decision did not leave nearly the impression that Earth Justice blogger suggested. In fact, after the reading of each, I was left with the thought, “Why didn’t he just paint a thick, villainous looking mustache on the non-profit’s picture”?
When I compared the two, here’s what McManus portrayed as the non-profit’s motivation:
“What got PLF so bothered about the delta smelt is that the fish’s preservation requires state and federal water managers in California to leave a little water in the Sacramento-San Joaquin River Delta in order to keep it from going extinct.”
Here’s what the court said:
The Growers have Article III standing to challenge the no take provision in ESA § 9 because the Service’s coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers.”


“We disagree with PLF’s priorities – that property owners have a right to water that belongs to all citizens; and to rid their property of rare American wildlife at the expense of the rest of us. America’s wildlife is something we all share – especially when we’re talking about fish in public waterways”. McManus continued by theorizing that the non-profit believed that it was “entirely within the rights of property owners to do as they please even if that means killing off the last bald eagle or grizzly bear”, while drawing a comparison to the railroad barons of the 19th Century.
The Court:
“..the Growers alleged that—as applied to the delta smelt—the Service’s application of ESA § 7 and power to enforce the “no-take provision” in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since “the delta smelt is a purely intrastate species, and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to [the operation] of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority [under the Commerce Clause].”

As a note, should the Court have found that the Commerce Clause (intended to regulate commerce among the states) was not applicable, it seems to me that California still has its own Endangered Species Act that could offer protection to our own delta smelt. But, that would probably not have the same effect as the thick, villainous mustache.


About bwdlg

Environmental Law
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