Written by Grady McCallie, NC Conservation Network's Policy Analyst

Following President George W. Bush’s nomination of Judge John Roberts to serve on the US Supreme Court, policy watchers have looked closely for clues about how Judge Roberts might rule on controversial issues. Several analysts and bloggers have focused on Robert’s dissenting opinion in the case Rancho Viejo v. Norton, dealing with protection of the endangered arroyo toad. Since, if he is confirmed, Roberts is likely to have a lasting impact on any number of environmental and other issues that come before the Supreme Court, we wanted to share with you the context of his dissent, and links so that you can read it for yourself.

Most federal environmental laws, including the Clean Air Act, Clean Water Act, and hazardous waste laws, as well as the Endangered Species Act, rest on an interpretation of the US Constitution dating back to the Great Depression. Prior to the 1930s, the Supreme Court took a skeptical view of federal regulation, repeatedly striking down Congressional efforts to regulate working conditions and social ills on the grounds that the US Constitution did not grant Congress authority to enact these laws. During the Great Depression, public attitudes changed, and the Court came under tremendous pressure to uphold far-reaching New Deal economic and social legislation. In a celebrated 1942 case, Wickard v. Filburn, the Supreme Court upheld penalties charged to a farmer who, in violation of federal law, raised extra wheat on his farm to feed to his own family and livestock. The rationale: the Commerce Clause of the Constitution gives Congress the authority to regulate any activity with an impact on interstate commerce, and by raising his own wheat, the farmer might not need to buy as much wheat from the market, thereby affecting interstate commerce.

On this basis, Congress could find authority to regulate almost anything, and the Commerce Clause became the explicit foundation for a great edifice of post-World War II federal laws and initiatives – including civil rights legislation, health and safety legislation, and environmental protections. While policymakers debated at length over the proper goals and tools of legislation, few questioned Congress’ authority to enact these laws, wise or unwise.

A 1990 Supreme Court opinion,US v. Lopez, authored by Chief Justice William Rehnquist, sent shock waves through legal communities by suggesting limits to the Commerce Clause. The case involved a challenge to a law criminalizing possession of a gun in a school zone. Rehnquist argued that possession of a gun in a school zone had no connection to interstate commerce: "to uphold [the statute], we would have to pile inference upon inference in a manner that would ... convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road ... but we decline here to proceed any further." As it turns out, the impact of Lopez has been limited, and the Supreme Court has not shown interest in overturning decades of federal legislation. Indeed, in a 1997 case, National Association of Home Builders v. Babbitt, the DC Circuit Court of Appeals refused to apply the reasoning of Lopez to endangered species protection (of the sweetly-named Delhi Sands Flower-Loving Fly), and the Supreme Court declined to take an appeal of that case.

Which brings us to Judge Roberts’ dissent in Rancho Viejo v. Norton. The case originated when the US Fish & Wildlife Service, seeking to protect the endangered arroyo toad, ordered a land developer to remove fences that could impede the movement of toads from uplands to lowland breeding sites. The developer refused and filed suit, claiming the agency could not require removal of the fences because the toad had no impact on interstate commerce. The trial court rejected this argument, as did the DC Circuit Court, holding (as in the flower loving fly case) that the key question was not whether the toad affects commerce, but whether the protection or destruction of endangered species as a whole affects commerce (it does). Following standard procedure, the developer appealed the Circuit Court decision (written by a panel of three judges), asking for the case to be reheard en banc, by all the judges in the DC Circuit at once. A majority of the judges voted to deny the petition for rehearing, but several dissented, including Roberts.

Although some press and blog coverage of the arroyo toad case has focused on the question of whether Judge Roberts is pro- and anti-toad, that’s not the critical issue. What’s important is his take on the Commerce Clause. If Roberts is willing to substantially limit the reach of the Commerce Clause – by, for example, requiring that each application of a statute have an impact on interstate commerce – his votes on the Supreme Court could significantly constrain not just the Endangered Species Act, but a whole spectrum of federal environmental laws.

You can read the DC Circuit Court opinion in Rancho Viejo v. Norton upholding protection for the arroyo toad and Roberts’ (short) dissent from the denial of rehearing en banc, and judge for yourself (you have to scroll down; the first part of the page is the denial and dissents by other judges). You might also like to read a perspective, including links to articles, from the pro-environment Center for Biological Diversity, which has worked to protect the arroyo toad.