Florida Endangered Species Suit Compounds Trump Rollback Threats

A landowner who was charged a nearly $140,000 fee to build a home in a threatened Florida bird’s habitat is aiming his Endangered Species Act lawsuit at the US Supreme Court—litigation that could combine with Trump administration rollbacks to undermine the law, environmental attorneys say.

It’s unconstitutional for the federal government to regulate imperiled species that exist in only one state because it violates the commerce clause of the US Constitution, the Pacific Legal Foundation, which represents landowner Michael Colosi, argues in Colosi v. Charlotte County, filed last year in US District Court for the Middle District of Florida.

If successful, the lawsuit would erode federal protections for the nearly 70% of imperiled species listed as endangered or threatened under the ESA that exist in only one state, according to a US Fish and Wildlife Service estimate cited in the litigation.

The commerce clause, which gives Congress broad authority to regulate business among the states, only gives the federal government the right to regulate interstate species, according to Mark Miller, director of environment and natural resources litigation at the Pacific Legal Foundation. Affirming such a limited reach of the ESA would be “one less land-use control” facing property owners, Miller said.

The lawsuit is proceeding as the Trump administration prepares several rollbacks of ESA regulations that conservation groups say will gut the law, including rescinding the definition of “harm” to a species in order to allow habitat impairment or destruction.

The Trump administration also plans to revise regulations for listing a species as threatened or endangered under the ESA, scrap the Biden administration’s regulations for designating “critical habitat” for imperiled species, and use the law’s emergency provisions to permit logging, energy, and other projects that may threaten listed species.

Taken together, the rollbacks and the Colosi litigation stand to undermine the ESA by ignoring “common sense and decades of settled law,” said Aaron Michael Bloom, senior attorney at nonprofit environmental law firm Earthjustice, who is representing environmental groups that have intervened in Colosi.

“If you destroy a species’ home, you can harm it just as surely as if you shot it directly with a bullet,” he said.

The US Fish and Wildlife Service didn’t respond to a request for comment.

Improper Fee

Colosi was filed by Michael Colosi, a Charlotte County, Fla., man who plans to build a house on 5.07 acres of land in an area where the threatened Florida scrub-jay habitat is found. The scrub-jay exists only in Florida.

The US Fish and Wildlife Service issued a permit to the county to allow for development within scrub-jay habitat in accordance with the county’s habitat conservation plan, which would reduce harm to the bird.

The county imposes fees on developers in some areas where construction could conflict with scrub-jay habitat. The county charged Colosi a $139,440 fee, the levy for developing between 5 and 20 acres of land where the scrub-jay may be found.

The lawsuit claims the fee is unconstitutional in part because the county allegedly didn’t prove the scrub-jay would be affected by Colosi’s home construction, and the fee is out of proportion with the size of his property.

It also claims the underlying power of Congress and the US Fish and Wildlife Service to regulate the scrub-jay on non-federal land isn’t enumerated in the Constitution, isn’t necessary and proper, and exceeds federal authority, which the Pacific Legal Foundation says is limited to interstate commerce.

The commerce clause prohibits regulating intrastate species “because the species itself has no impact on commerce,” Miller said. “If the state wants to protect the bird, it can.”

The Trump administration, also a defendant in the lawsuit, in an April motion to dismiss argued Colosi lacks standing because he failed to show ESA regulations injured him, his claims against the Fish and Wildlife Service aren’t ripe, and the court lacks jurisdiction over one of Colosi’s claims. The court denied the motion, though the case is currently paused due to the federal government shutdown.

A Post-Chevron World

Legal experts say courts have repeatedly affirmed the right of the federal government to protect imperiled species that exist in just one state and Colosi‘s odds of success are slim.

PLF’s argument was unpersuasive to six different federal courts of appeal between 1997 and 2017, said Melinda Taylor, senior lecturer at the University of Texas School of Law.

“The constitutional question that PLF is raising has been asked and answered numerous times, with the appellate courts consistently affirming that the ESA is constitutional insofar as it applies to intrastate species,” she said.

The US Supreme Court had several opportunities to address the issue, but declined each time, said Holly Doremus, an environmental law professor at the University of California-Berkeley School of Law.

The high court isn’t likely to take the case because of “too much possibility to create mischief well beyond the ESA context if they radically reshape commerce clause law,” she said.

But after Loper Bright Enters v. Raimondo—in which the Supreme Court in June 2024 overturned the Chevron doctrine that courts should defer to federal agency interpretations of laws—this time might be different, Miller said.

The Pacific Legal Foundation has won numerous cases at the Supreme Court, including in 2023 in Sackett v. EPA, which limited the scope of the Clean Water Act to protect waterways and wetlands as waters of the US.

“We think that after Loper Bright, where the courts have to show less deference to the agencies, we have at least a fighting chance to win,” Miller said.

If Miller proves to be correct, the effect on endangered species will be profound, Bloom said.

“The Colosi case ignores the reality that when a species’s range shrinks, it needs more protection, not less,” he said. “If Colosi‘s argument were accepted, it would eviscerate the Endangered Species Act.”