Judge Roberts and the Hapless Toad?

One of the more controversial aspects of Supreme Court nominee John Roberts' brief record on the DC Court of Appeals is his dissenting opinion in the 2003 in Rancho Viejo v Norton in which he disaggreed with the majority opinion because he did not believe that:

... regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States."

As discussed in a nice piece in the Boston Globe, This opinion is problematic. Article 1 section 8 of The Constitution grants Congress the power to regulate interstate commerce. Beginning in the 1930s, when Roosevelt pushed through his New Deal reforms, the court has broadly interpreted "commerce" to include interests and this has been the justification of virtually every federal environmental law.

From a legal perspective, the decision to treat the existence of the arroyo southwestern toad as "interstate commerce" may be questionable, but from an economic perspective there's little question. Whether one lives in California or Texas, the web of life that the Endangered Species Act (ESA) seeks to protect is a public good that provides value to all of society. These benefits are not associated with use of the toad, but its existence. Many have argued about problems with the way the ESA goes about protecting these benefits, but for most environmental economists the reality of those benefits is beyond dispute. Hence, it is the tone of Roberts question, the "hapless toad" remark, which is troubling. Is he being rhetorical, or does he really not understand the nature of existence values?

With that said, I'm not all that pessimistic. First, I've read that Roberts respects precedent, so I hope that he would refrain from scaling back 80 years of law. Second, the Globe article mentions that he did pro bono work for the Lake Tahoe arguing before the Supreme Court that they should be allowed to impose a ban on further development without compensating landowners. This suggests an appreciation of public goods and a limited interpretation of the taking clause, which is good news for environmentalists.

Comments

[Cecilius]

Forgive me for sounding like a rube, but would you mind explaining what the arroyo toad has to do with interstate commerce and the "nature of existence values"? Were I more cynical, I would conclude from your declaration that there is "little question" about this issue and that "the reality of those benefits is beyond dispute" that you can not defend your position. So, let's hear it.

[Rich Woodward]

o.k., maybe I jumped over a couple of steps. The basic idea of the ESA is that society is harmed when a species go extinct. It is not just because we lose the possible use benefits (e.g. frog legs), but because we value the existence of all species. This value can accrue to people regardless of where they live. There is substantial literature documenting existence values and such values have even been used in litigation.

[apav]

Can you provide references for your "read that Roberts respects precedent"? All I've heard is his appellate confirmation testimony which implies zippo about how he feels about it as a member of the Supremes. Now one can't imagine any lawyer who doesn't have some respect for precedent, without which it can be argued there is no such thing as law, so I don't have the same warm fuzzies about this at all.

[Daniel Rodríguez]

I would like that Roberts will stand on the written constitution. If you want federal laws that recognize the "nature of existence values", you should approve an amendment.

[Cecilius]

Rich:

Thanks. Sounds a little sketchy as far as fitting into even the most expansive definitions of "interstate commerce" under the law, but I'll look it up. Just raised to be skeptical about statements that are heavy on the absolutism and short on the details.

[chris@organicmatter]

Let's fess up something here - the application of the commerce clause to the regulation of endangered species is perhaps a bit tenuous, though environmental legislation isn't the regulatory arena in which the commerce clause is stretched.

It's important to remember that Congress only has the power to legislate where the constitution of the United States GIVES Congress said power. As such, when Congress sees the need to legislate some policy, they are forced to pore over the constitution in search of a part of it that grants them the power to pass laws re: the policy in question.

Unfortunately the environmental problems that we would eventually encounter were not yet on the radar of our founding fathers, who thusly failed to say anything about "the environment" in the constitution. Oops.

It’s up to Congress then, to find something in the constitution that does grant them the power to regulate environmental issues. The ESA isn’t the only environmental statute that relies on the commerce clause – others include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and the Safe Drinking Water Act. I’ve written a number of posts at Organic Matter that address the commerce clause, but I believe these two are the most specific and informative:

Real Activist Judges:
http://www.organicmatter.net/node/5

On the Importance of the Commerce Clause:
http://www.organicmatter.net/node/65

[chris@organicmatter]

There's also a really comprehensive piece on Roberts (and a bit on the commerce clause and its application to environmental law) over at Grist:

http://www.grist.org/news/maindish/2005/07/22/gertz-roberts/index.html