May 2011

By Daniel J. Rohlf, Professor of Law, Lewis and Clark Law School

In his book Last Chance to See, Douglas Adams – known by most for his cult classic Hitchhikers Guide series – recounts a story based on the Sibylline books. In the tale, a mysterious woman offers to sell the books of knowledge to the residents of a prosperous city, but when they refuse to pay she burns half of the collection. Later, when she renews her offer to sell as the city’s fortunes begin a steady decline, citizens protest that they cannot afford her higher price for the remaining books. She burns more of the books. Finally, when the old woman returns with the single remaining book of knowledge, the now-desperate townspeople pay a dear price for it. “It had better be good,” they cry.

“It is,” the old woman retorts, “and you should have seen the rest of it.”

Adams reportedly consideredLast Chance to See, which chronicled his travels to encounter vanishing wildlife, his favorite work. Unfortunately, his allegorical tale about saving endangered species is playing out today in real life in Washington D.C. 

Congress in 1973 passed the Endangered Species Act (ESA) in a far-reaching effort to identify and conserve imperiled species and the ecosystems upon which they depend. However, recent events on Capitol Hill underscore our faltering efforts – and sometimes even unwillingness – to protect invaluable biological resources at a time when species and their ecosystems are under growing pressures from global as well as local threats.

For the first time in ESA’s history, Congress in April mandated removal of an endangered species from the Act’s protected rolls when Montana Senator John Tester slipped into the hard-fought budget bill a provision effectively striking gray wolves in the western U.S. from the list of endangered species. To many, this legislative delisting sent a signal that Congress, motivated by the sluggish economy or political opposition by powerful constituencies, may be increasingly willing to strike down conservation measures for species in danger of extinction. A rash of such bills are currently pending before lawmakers. 

Another bill proposed by Senator Tester in April perhaps best exemplifies the wrong approach to federal endangered species policies. Reacting to environmental organizations’ efforts to ban a use of lead in ammunition used for hunting – which spreads toxic lead throughout the American landscape -- Tester recently sponsored a bill outlawing federal regulation of lead ammunition. In so doing, Tester ignored the fact that lead annually poisons millions of non-target animals each year; the litany of species killed by lead includes highly endangered California condors, which despite extensive recovery efforts by the U.S. Fish and Wildlife Service (FWS) may again become extinct in the wild simply because they risk lead poisoning whenever they eat. The Montana senator also overlooked lead’s threats to people as well; hunters endanger themselves and their families because tiny pieces of lead often contaminate the meat people consume from game killed with lead bullets. Rather than defending an unacceptable status quo, lawmakers and the executive branch should encourage investment in solutions. Non-lead bullets are as effective as those made with lead, though they cost a bit more and require hunters to change long-held habitats. But modest additional expenditures for non-toxic ammunition and a simple willingness to change ammunition types would pay huge dividends in terms of wildlife saved from lead poisoning, and in the many people spared from ingesting toxic lead fragments. 

By Adam Winkler, a constitutional law professor at UCLA School of Law.

Tuesday’s oral argument in the U.S. Court of Appeals for the Fourth Circuit unmasked the true revolutionaries in the battle over health care reform. Ever since President Obama’s signature legislative accomplishment was enacted, opponents have taken to the airways decrying the law as a radical attempt to expand the power of the federal government. Never before has Congress regulated “inactivity” and forced citizens to do something like buy health insurance, they have insisted. 

Of course, it doesn’t take long to find examples of Congress doing just that: forcing people to file tax returns, serve on juries, sign up for the selective service. But those are different, health care’s opponents argued, because none of them required individuals to purchase a product from a private party. When it was pointed out that Congress forced people to purchase firearms and ammunition in the militia acts of 1792, opponents once again came up with a creative answer. That was an exercise of Congress’s Militia Power, not the Commerce Power. Left unanswered was why Congress would have the power to mandate such transactions under any other clause but the Commerce Clause – an especially bewildering distinction given that we’re talking about mandated commercial transactions.

The judges on the Fourth Circuit were, indeed, bewildered.