Federal Court Strikes Down Endangered Species Act

A federal court in Utah gave a win for energy permitting and for private land use. The court found the federal prohibition, preventing the taking of a threatened species, to be an overreach by the federal government.

Judge Dee Benson sums up his rational in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service:

Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.

[Washington Post | Volokh Conspiracy]