Is the Endangered Species Act Being Used to Commandeer State Governments?

Environmental organizations have filed citizen suits against state and local governments alleging that their failure to regulate more stringently, or their issuance of permits to particular activities, violate the Endangered Species Act (ESA). In effect, these suits seek to hold state and local governments vicariously liable for harms to listed species.

There are questions about whether the ESA should be interpreted or applied in this fashion. There are also questions about whether the imposition of vicarious liability on state and local governments violates the anti-commandeering principle undr ew York v. United States, Printz v. United States, and NCAA v. Murphy.

Last week I hosted a Federalist Society forum, “Commandeering for Conservation?” in which Jonathan Wood of PERC and William Snape of American University’s Washington College of Law discussed and debated this question.

For what it is worth, I am with Jonathan Wood on this question, for reasons I explained in this post (and will elaborate on in a forthcoming paper).