Smelt, commerce, and the Constitution

The U.S. Supreme Court – not a group that most of us would describe as liberal or “green”  – has refused to limit Endangered Species Act (ESA) protections for Delta smelt, leaving in place a ruling by the 9th U.S. Circuit Court of Appeals.

The 9th Circuit had upheld the ESA as a valid use of Congress’s constitutional power. Three San Joaquin Valley growers argued that smelt have no commercial or interstate uses and therefore should not be regulated by the federal government.  But the 9th Circuit ruled that the ESA “bears a substantial relation” to interstate commerce.

This wasn’t just about smelt.  The point was that regulation to protect species under the ESA does not in principle violate the Commerce Clause of the Constitution. 

This is the sixth time the U.S. Supreme Court has refused to question the constitutionality of the ESA.

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