## Facts

- The Endangered Species Act (ESA) § 9 makes it unlawful to “take” an endangered species; “take” includes actions that “harass” or “harm” the species.
- The Fish and Wildlife Service (FWS) listed the Delhi Sands flower-loving fly as an endangered species.
- The fly’s habitat was confined to a small area in Southern California.
- After the listing, San Bernardino County altered plans for a hospital complex on land FWS determined contained fly habitat.
- FWS and the County negotiated a plan allowing construction in designated habitat in exchange for project modifications and acquisition and set-aside of nearby land as habitat; FWS issued a permit for a related power plant.
- The County also sought to redesign a nearby road intersection to improve emergency access; FWS advised the expansion would likely result in an unlawful “take” under ESA § 9.
- Negotiations over the road work failed, and the County, joined by builder-industry plaintiffs and a city, challenged applying ESA § 9 to their construction activities affecting the fly.

## Issues

1. Whether Congress, under the Commerce Clause, may apply ESA § 9’s “take” prohibition to a purely intrastate, noncommercial species with habitat confined within a single state.

## Decision

- The D.C. Circuit affirmed summary judgment for the federal defendants.
- The court held that applying ESA § 9 to the Delhi Sands flower-loving fly was within Congress’s Commerce Clause authority.
- The court treated the challenge as an as-applied challenge to one component of a broader statutory program and concluded the program’s regulated class of activities substantially affects interstate commerce in the aggregate.
- A concurrence agreed in the judgment but differed in emphasis.
- A dissent would have held the application unconstitutional for lack of a sufficient commerce nexus to this intrastate species.

## Legal Principles

- A Commerce Clause analysis may consider whether a challenged application is part of a comprehensive regulatory scheme whose regulated class of activities has a substantial effect on interstate commerce in the aggregate.
- Congress may regulate conduct that is not itself interstate or commercial when doing so is a rational component of a broader economic regulatory program addressing substantial interstate effects.
- Limits described in United States v. Lopez do not necessarily invalidate statutes that operate as constraints on economic activity and function within an integrated regulatory scheme tied to commerce-related effects.

## Conclusion

The court upheld ESA § 9’s application to an endangered insect found only in California, reasoning that the “take” prohibition is a rational part of a comprehensive federal scheme protecting endangered species whose aggregate effects on interstate commerce are substantial, even if the particular species is intrastate and not bought or sold.


Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998)