Applying Lopez

1. San Bernardino County in California, which is in southern California, east of LA, wants to build a new hospital. The problem is that redesign of a traffic intersection to facilitate access of emergency vehicles to the hospital will encroach on the habitat of the Delhi Sands Flower-Loving Fly, the only remaining subspecies of its species of fly. The Fly visits flowers in search of nectar, thereby pollinating native plant species, so it serves an important role in the local natural environment. The flies live as larvae for nearly two years under Delhi Sands, a particular type of grit, after which they emerge to feed and breed for two weeks before dying. By the time this case arose, over 97% of the historic habitat of the Fly had been eliminated, and there were fewer than 1,000 of the Flies left, all of whom lived in the remaining area of Delhi Sands, a forty square mile area that overlaps San Bernardino and Riverside Counties. The Fish and Wildlife Service invoked the Endangered Species Act to prevent the redesign of the traffic intersection near the hospital. The Endangered Species Act makes it unlawful to, among other things, "take [an endangered] species within the United States." The plaintiffs argued that invoking the Endangered Species Act to protect the Delhi Sands Flower-Loving Fly would violate the Commerce Clause. What result? How do you argue that the Commerce Clause does or does not permit the government to protect the Fly? [Note that, while one might question whether redesigning the traffic intersection involves a taking of the Fly, the Supreme Court had already held that compromising the habitat of a species is a taking of the species.]