The Curious Case of the Prairie Dog that Stopped Barking

Posted on August 31, 2017 by Allan Gates

In 2015 a district court enjoined enforcement of an Endangered Species Act 4(d) rule on the ground the federal government lacked authority under the Commerce Clause to regulate the take of a purely intrastate species, the Utah Prairie Dog, on nonfederal land.  The decision flew in the face of four prior court of appeals decisions in other circuits and attracted substantial commentary, including a blog post by a fellow member of ACOEL. In late March the Tenth Circuit unanimously reversed the district court decision. The Tenth Circuit’s opinion expressly embraced the prior decisions in the Fourth, Fifth, Ninth, and Eleventh Circuits that the district court had rejected.

Standing alone, the Tenth Circuit’s decision would be notable only for the fact that it restored Endangered Species Act case law to a more orthodox state of consensus.  But four procedural details add interesting contextual background.

First, the Tenth Circuit took an unusually long time deciding the case.  The court heard oral argument and took the appeal under submission on September 29, 2015.  The court did not issue its decision until March 29, 2017, exactly eighteen months later.  It is not apparent why the Tenth Circuit took so long to issue its opinion, but the length of the wait was definitely a source of nervous contemplation among the parties.

Second, Friends of Animals intervened as a party in the district court and participated vigorously throughout the trial court proceedings and appeal.  At the time the Friends intervened, October of 2013, there was little reason to think the Fish & Wildlife Service would not vigorously defend its authority under the ESA.  By the time the appeal was decided, however, the picture was different.  The Trump administration had taken office, and there was significant doubt about its interest in vigorously defending the scope of Endangered Species Act jurisdiction.  The presence of Friends of Animals as a party, and not merely as an amicus, assured there would be vigorous party opposition to the plaintiff’s petition for rehearing and potentially its petition for certiorari.

Third, after the Tenth Circuit’s opinion was issued and before the deadline for responding to the plaintiff’s petition for rehearing en banc, the Fish & Wildlife Service ordered an internal review of the 4(d) rule in dispute, to be completed in 120 days.  The review is to consider, among other things, the effectiveness of the state’s Utah Prairie Dog Management Plan in protecting the species.  The Service asked the court for a 135 day stay of proceedings to allow completion of the internal review before requiring any other action in the appeal.  The Service argued the internal review could result in changes to the 4(d) rule that might render the plaintiff’s claims moot.  The court denied the Service’s request for stay and subsequently denied the plaintiff’s petition for rehearing en banc.

The Service’s decision to initiate internal review of the 4(d) rule may wind up frustrating both the anti-ESA property rights advocates and the environmental groups.  The Service’s statement that its internal review might moot the plaintiff’s claims will likely be advanced as a reason for denying any petition for certiorari the plaintiff may file.  And the Service’s explicit focus on examining the effectiveness of the state’s Utah Prairie Dog Management Plan may foreshadow an inclination on the part of the new administration to reduce federal protection of the species despite the success in beating back the assault on ESA jurisdiction.

Tenth Circuit Rejects Commerce Clause Challenge to Colorado’s RPS

Posted on July 16, 2015 by Jeff Thaler

On Monday July 13, 2015, the 10th Circuit Court of Appeals held that Colorado’s mandate that the state’s biggest utilities get 30 percent of their power supplies from renewable resources is legal, rejecting a dormant commerce clause challenge. In the case of Energy and Environment Legal Institute v. Joshua Epel et al, decision, Judge Gorsuch began the unanimous decision in an unusually clear, direct and non-traditional style; the opening paragraph says it all: 

Can Colorado’s renewable energy mandate survive an encounter with the most dormant doctrine in dormant commerce clause jurisprudence? State law requires electricity generators to ensure that 20% of the electricity they sell to Colorado consumers comes from renewable sources. Under the law, too, this number will rise over time. It may be that Colorado’s scheme will require Coloradans to pay more for electricity, but that’s a cost they are apparently happy to bear for the ballot initiative proposing the renewable energy mandate passed with overwhelming support. So what does this policy choice by Coloradans affecting Colorado energy consumption preferences and Colorado consumer prices have to do with the United States Constitution and its provisions regarding interstate commerce? The Energy and Environment Legal Institute points out that Colorado consumers receive their electricity from an interconnected grid serving eleven states and portions of Canada and Mexico. Because electricity can go anywhere on the grid and come from anywhere on the grid, and because Colorado is a net importer of electricity, Colorado’s renewable energy mandate effectively means some out-of-state coal producers, like an EELI member, will lose business with out-of-state utilities who feed their power onto the grid. And this harm to out-of-state coal producers, EELI says, amounts to a violation of one of the three branches of dormant commerce clause jurisprudence.

In the end, the district court disagreed with EELI’s assessment and so must we.