After the Supreme Court decided Lopez, a number of commentators speculated about its impact on the Endangered Species Act. This Article reexamines the issue in light of Morrison and SWANCC. Part V demonstrates that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been a shared federal and state function that recognizes the legitimacy of federal regulation whenever the need for preservation is great and states have failed to address important conservation issues. Additionally, Part V shows federal regulation of endangered or threatened species does not undermine states' traditional role in regulating non-threatened species. Finally, Part VI establishes that the preservation of endangered or threatened species serves long-range national economic interests in preserving biodiversity and potentially valuable genetic material that deserve deference from courts even though their exact value is unascertainable at present. Applying a rational basis test, Part VI concludes that courts should defer to Congress' goal of preserving our genetic and biological heritage as a reasonable policy substantially advancing America's long-term commercial goals. In light of their concurring opinion in Lopez and support for protection of endangered species on private lands in Sweet Home, Justices O'Connor and Kennedy may provide key swing votes if the Court is to take a more deferential approach to federal regulation of intrastate endangered species under the Commerce Clause.
Mank, Bradford, "Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause" (2002). Faculty Articles and Other Publications. 264.