Judicial decisions empower plaintiffs to commandeer state and local authorities under the Endangered Species Act.
Illumination along the shore can create hazards for marine life, particularly turtles. Bright lighting after dark can disorient sea turtle hatchlings and prevent them from reaching the ocean. When beachfront lighting is sufficiently intense, it may even amount to an unlawful “take” of Loggerhead sea turtles and other species protected under the Endangered Species Act.
Suppose that installing or maintaining beachfront lighting in turtle habitat constitutes a take under Section 9 of the ESA. Might a state or local government’s choice to permit such lighting—or merely not to ban it—also count as a take under Section 9? And if so, could the ESA compel a state or local government to pursue action against private landowners who install or oversee beachfront lighting during sea turtle nesting? Would any such requirement withstand constitutional scrutiny? I would argue not.
Holding state and local governments liable under the ESA for licensing, permitting, or failing to regulate private conduct runs against the anti-commandeering principle, or so I contend in my article, “Conservation Commandeering,” which is slated to appear in a Catholic University Law Review symposium. Nevertheless, courts occasionally impose this form of vicarious liability on state and local governments, often in reaction to citizen lawsuits under the ESA brought by environmental groups. Some cases have involved a state agency’s failure to impose sufficiently stringent limits on fur trapping or fishing, among other activities. In this post I highlighted a case that is pending before the Eleventh Circuit concerning Florida’s alleged failure to regulate septic systems adequately. At present, the majority of district courts that have considered such claims have dismissed arguments grounded in commandeering. In my view, those rulings are incorrect, and imposing liability in these situations is difficult to reconcile with the Court’s federalism jurisprudence.
I have just posted a draft of the article on SSRN. Here is the abstract:
The Endangered Species Act (ESA) prohibits anyone—including state and local governments—from “taking” protected species without a permit. Courts have extended this prohibition to impose vicarious liability on state and local governments, holding that a government’s failure to regulate private activities sufficiently harmful to listed species may itself constitute an illegal take. This Article argues that such “conservation commandeering” cannot be reconciled with the Supreme Court’s anti-commandeering jurisprudence. Under current doctrine, the federal government may not compel state and local governments to enact or administer regulatory programs implementing federal law, nor may it prohibit states from licensing or authorizing private activity. Requiring states to restrict private conduct as a condition of avoiding ESA liability does precisely what these decisions forbid. This Article further argues that enforcing the anti-commandeering principle need not undermine species conservation. The ESA’s cooperative federalism provisions and existing tools for inducing voluntary state participation offer workable alternatives—ones that respect both constitutional structure and the practical importance of state and local cooperation in protecting listed species.
Comments are welcome.
