Using the Endangered Species Act to Preempt Constitutional Challenges to GMO Regulation

Scientific studies show that genetically modified organisms ( GMOs ) have an adverse impact on biodiversity, especially pollinating species. Enforcement of the laws regulating the introduction of GMOs into the environment has not kept pace with this finding. Under existing judicial interpretation of the GMO regulatory framework, a loophole exists by which no single agency is responsible for assessing the cumulative environmental impacts of GMOs on biodiversity. Section 7 of the Endangered Species Act ( ESA ) requires the government to consult with the Fish and Wildlife Service ( FWS ) when an action might endanger the continued survival of a species. This paper argues that deregulation of GMOs is a government action that threatens the continued survival of pollinators and therefore necessitates a section 7 consultation with the FWS. This article argues that the Commerce Clause, Supremacy Clause, and Necessary and Proper Clause justify regulation of GMOs under the ESA, and this constitutional authority circumvents dormant commerce clause challenges to local and state efforts to label or otherwise regulate GMOs