Bright beachfront lighting can disorient Loggerhead sea turtle hatchlings, potentially constituting a prohibited "take" under Section 9 of the Endangered Species Act (ESA). This raises the question of whether state or local governments allowing such lighting—by permitting it or failing to prohibit it—can also be held liable for a "take."
Jonathan H. Adler argues in his forthcoming Catholic University Law Review article, "Conservation Commandeering," that holding state and local governments liable under the ESA for licensing, permitting, or failing to control private conduct violates the anti-commandeering principle. Despite this, courts frequently impose vicarious liability on state and local governments, often in response to citizen suits filed under the ESA by environmental groups.
Recent cases have involved state agencies failing to impose adequate restrictions on activities like fur trapping and fishing. Notably, the Court of Appeals for the Eleventh Circuit is currently addressing an appeal concerning Florida's alleged failure to adequately regulate septic systems, which may harm listed species.
Courts have extended prohibitions under the ESA to hold governments responsible when they fail to regulate private activities sufficiently harmful to protected species, effectively treating such failures as illegal takes. However, current legal doctrine holds that the federal government cannot compel state and local governments to enact or administer federal regulatory programs, nor prohibit states from licensing or authorizing private activities.
This tension between conservation efforts under the ESA and constitutional limits on federal authority over states remains unresolved.
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