Endangered Species Law & Policy

The Ninth Circuit Court of Appeals held that the regulation of water deliveries from the State Water Project and Central Valley Project to protect the threatened delta smelt did not violate the Commerce Clause of the United States Constitution.  San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-19152 (9th Cir. March 25, 2011). 

The decision is the latest in a series of decisions by the federal appellate courts rejecting Commerce Clause challenges to the Endangered Species Act (ESA). The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The Supreme Court has, to date, declined to review any of the ESA Commerce Clause decisions.

The Ninth Circuit, however, rejected the argument of the Fish and Wildlife Service (and the conclusion of the district court below) that the farming company plaintiffs did not have standing to bring the lawsuit. The court concluded that the companies were not required to show a threat of imminent enforcement under the ESA. The coercive ability of the Fish and Wildlife Service to enforce the ESA is sufficient to satisfy the causation element of standing. The court’s decision provides additional support for the standing of economic interests in other pending Delta lawsuits brought under the ESA.