Jogi ismeretek | Gazdasági jog » Mary Anne Nash - The Evolution of the Commerce Clause, An Evaluation of Recent Supreme Court Decisions in the Context of Federal Wetlands Protection

Source: http://www.doksinet AN ABSTRACT OF THE THESIS OF Mary Anne Nash for the degree of Honors Baccalaureate of Science in Environmental Economics, Policy, and Management presented on November 16, 2006. Titled The Evolution of the Commerce Clause: An Evaluation of Recent Supreme Court Decisions in the Context of Federal Wetlands Protection. The decisions in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, 531 U.S 159 (2001) (SWANCC) and Rapanos v United States, 547 U.S (2006), deviated from the more broad interpretations of congressional intent granted by the court in past assessments of the constitutionality of environmental regulation under the Commerce Clause of the United States Constitution. These landmark Clean Water Act decisions forever altered the landscape of federal water regulation and set forth a new test for federal jurisdiction over wetlands. The SWANCC decision narrowed the scope of federal wetland protection. The case established that

the federal government cannot assert jurisdiction over isolated wetlands that do not possess a “significant nexus” to traditionally navigable waters. Rapanos further defined this “significant nexus” by outlining the criteria that must be met in order to assert federal jurisdiction: the wetlands in question must “significantly affect” the chemical, physical, or biological integrity of navigable waters. The impact of these cases on federal wetland protection depends on the scientific criteria and impact thresholds federal agencies set forth when they issue a rulemaking in response to these decisions. Abstract approved: Geoff Huntington Key Words: Commerce Clause, constitution, federal regulation, wetlands, jurisdiction Corresponding e-mail address: maryannenash@yahoo.com Source: http://www.doksinet The Evolution of the Commerce Clause: An Evaluation of Recent Supreme Court Decisions in the Context of Federal

Wetlands Protection. by Mary Anne Nash A PROJECT submitted to Oregon State University University Honors College in partial fulfillment of the requirements for the degree of Honors Baccalaureate of Science in Environmental Economics, Policy, and Management (Honors Scholar) Presented November 16, 2006 Commencement December 2006 Source: http://www.doksinet Honors Baccalaureate of Science in Environmental Economics, Policy, and Management project of Mary Anne Nash presented on November 16, 2006. APPROVED: Geoff Huntington, Mentor, representing Forest Resources Dr. Richard Adams, Committee Member, representing Agricultural and Resource Economics Dr. William Jaeger, Committee Member, representing Agricultural and Resource Economics

Joe Hendricks, Dean, University Honors College I understand that my project will become part of the permanent collection of Oregon State University, University Honors College. My signature below authorizes release of my project to any reader upon request. Mary Anne Nash, Author Source: http://www.doksinet TABLE OF CONTENTS Page INTRODUCTION .1 METHODOLOGY .2 DISCUSSION Background .3 Evolution of the Commerce Clause .4 History of Regulation of US Waters .7 United States v. Riverside Bayview Homes9 SWANCC v. US Army Corps of Engineers 10 Rapanos v. United States 14 Commerce Clause Analysis of Decisions .16 Implications of SWANCC and Rapanos .18 CONCLUSION.22 WORKS CITED.23 Source: http://www.doksinet The Evolution of the Commerce Clause: An Evaluation of Recent Supreme Court Decisions in the Context of Federal Wetlands Protection INTRODUCTION:

Article I, Section VIII of the United States Constitution reads, “Congress shall have the power to regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes.” Congress has used this power to enact a variety of environmental protection laws, including the Clean Water Act of 1972. Under CWA § 404, the US Army Corps of Engineers is charged with regulating the dredge and fill of materials into navigable waters, which the Act defines as “waters of the United States.” CWA § 404 is commonly referred to as the “wetlands provision.” Two recent US Supreme Court cases challenged the authority of the Corps to assert jurisdiction over wetlands with tenuous connections to navigable water. In Solid Waste Agency of Northern Cook County v US Army Corps of Engineers, 531 U.S 159 (2001) (SWANCC), the court held that the Corps could not assert jurisdiction over isolated wetlands, which it defined as those without a “significant nexus” to navigable

waters. In Rapanos v United States, 547 US (2006), the court articulated the criteria the Corps must meet under the “significant nexus” test in order to assert jurisdiction. While the implications of these rulings on the federal government’s ability to assert jurisdiction over wetlands depends on how they establish scientific criteria, it is clear that these decisions have altered the scope of federal wetlands protection. Source: http://www.doksinet Commerce Clause 2 METHODOLOGY: This research examines how the U.S Supreme Court’s (Court) decisions in SWANCC and Rapanos will affect federal jurisdiction over wetlands. Initially, this paper outlines the evolution of the Commerce Clause. Then, the focus shifts to a discussion of the regulation of U.S waters The paper analyzes the Bayview Riverside, SWANCC, and Rapanos cases for their background, principles of law, and impact on federal water regulation. This paper explains how these cases have altered federal wetland

protection, and outlines the test that now exists in light of these cases. The paper concludes with a brief analysis of the implications of these cases on state wetland programs and private property rights as it relates to wetlands protection. Source: http://www.doksinet Commerce Clause 3 DISCUSSION: Background: The earliest federal efforts at environmental protection rested on the authority granted Congress under the Commerce Clause of the Constitution. In the two centuries since the Constitution was ratified, the extent to which Congress has used the Commerce Clause as its source of regulatory authority has increased and broadened, especially regarding federal regulation of U.S waters The degree to which Congress may use its Commerce Clause powers to regulate all of the waters of the United States is an issue that continues to be examined by the courts. In 2001 and again in 2006, the Supreme Court issued two landmark decisions that significantly altered the landscape of federal

water regulation. The decisions in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, 531 US 159 (2001) (SWANCC) and Rapanos v. United States, 547 US (2006), deviated from the more broad interpretations of congressional intent granted by the court in past assessments of the constitutionality of environmental regulation. These decisions have caused widespread confusion about the ability of federal agencies to constitutionally assert regulatory authority in compliance with legislative directives, as well as Congress’ constitutional authority to issue those directives. This confusion has altered and blurred the relationship between federal regulation and private property rights, leaving both the federal agencies and property owners uncertain of their role in water regulation. While the Court did not directly touch on Congress’ power to fully regulate environmental protection in either case, these cases have set the stage for a debate over the scope of

Congress’ Commerce Clause powers that is likely to continue for decades to come. Source: http://www.doksinet Commerce Clause 4 Evolution of the Commerce Clause: Article I, Section VIII of the U.S Constitution states that “Congress shall have the power to regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes.” Upon receiving this directive, Congress used this power to enact a variety of laws governing many activities thought to have links to interstate commerce. In 1824, Gibbons v. Ogden, 22 US 1 (1824), first established that the reaches of the Commerce Clause are broader than the simple regulation of goods trafficking and sales; it contains: “The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than prescribed in the constitution.” Since this

ruling, the outer limits of Congress’ authority in enacting laws based upon their Commerce Clause powers remained largely unchecked by the courts for over a century (Downing, et al 476). In 1995, the US Supreme Court issued the first in a series of decisions that narrowed and defined the scope of Congress’ authority to regulate under its commerce powers. In United States v. Lopez, 514 US 549 (1995), the US Supreme Court restricted the extent of Congress’ Commerce Clause powers by setting forth three broad categories of activity that it may regulate. These broad categories were later refined in United States v Morrison, 529 U.S 598 (2000), and Gonzales v Raich, 545 US 1 (2005) In Lopez, the court reasoned that the Gun-Free School Zones Act of 1990 (18 U.SC § 922 (q)) was unconstitutional because the activity it regulated (possession of a firearm in a school zone) was too far removed from interstate commerce to affect the economy on a massive scale. The court reasoned that if it

were to allow Congress to regulate activities far removed from commerce, then there would be no limits on its powers under the Commerce Clause. Since Source: http://www.doksinet Commerce Clause 5 the Constitution clearly creates a Congress with “enumerated powers,” such regulation cannot be allowed (Lopez). The court then established three categories of activity that Congress has the authority to regulate. First, Congress may regulate the channels of interstate commerce and keep them free from “immoral and injurious use.” Secondly, Congress may regulate to protect instrumentalities, persons, or things in interstate commerce, even if the threat is solely from intrastate activities. Finally, Congress has the authority to regulate activities that “substantially affect” interstate commerce. This affect may be individual in nature, so long as it could have a cumulative impact (Lopez). These categories of activity formed the basis for the U.S Supreme Court’s analysis in the

SWANCC and Rapanos cases In Morrison, the court found that when dealing in an area traditionally within the state’s police power, Congress may not be able to act only on the basis of a perceived aggregate impact. The court struck down the Violence Against Women Act of 1994, which contained a provision at 42 U.SC § 13981 that allowed women to seek civil remedies as victims of violent crime in court, even when there were no criminal charges associated with the case. The court reasoned that Congress cannot “regulate noneconomic conduct based solely on the conduct’s aggregate effect on interstate commerce” (Morrison) While the courts have yet to establish the outer reaches of this decision, it is clear that Congress may no longer use the Commerce Clause to regulate interstate activities determined to be “noneconomic.” The court’s argument was again based on maintaining the proper balance between state and federal power: "Were the Federal Government to take over the

regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur." (Morrison) Source: http://www.doksinet Commerce Clause 6 This decision further refined the Lopez test and set forth another consideration that courts must make in deciding the constitutionality of federal laws and regulations. In June 2005, the courts further refined Congress’ powers under the second element of the Lopez Commerce Clause test. In Gonzales v Raich, the court held that: “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ i.e, not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Under this decision, the court held that the federal government may regulate marijuana under the Controlled Substances Act (21 U.SC 801

et sequitur), even if the plant was not intended for sale and would never enter into interstate commerce. The court reasoned that a noneconomic intrastate activity may be subject to federal regulation if the aggregate impact of that activity both inside and outside that state would be detrimental to the broader statutory scheme regulating that activity (Raich). The implications of this case to broader Commerce Clause regulation have yet to be seen. However, since the Supreme Court did not use this case in their Rapanos discussion, they do not seem willing at present to apply this rationale to environmental regulation. Congress’ authority to regulate activities affecting the environment remained largely unchallenged in the courts until the latter part of the twentieth century. Until that point, there had been little conflict between regulation of the environment by the federal government and that by the states under their traditional police powers. However, the environmental movement

prompted a national interest in environmental health, which resulted in federal legislation designed to protect the environment (Ferrey 137). In Hodel v Indiana, 452 US 314 (1981), the court issued a landmark opinion concerning the breadth of Congress’ commerce power for use in environmental regulation. Source: http://www.doksinet Commerce Clause 7 The court found that where Congress has a “rational basis” for finding that the regulated activity affects interstate commerce, it may regulate (Hodel). The “rational basis” test allows for Congressional regulation if there’s a rational basis for Congress to find that the regulated activity affects interstate commerce and if there’s a reasonable connection between the regulatory means selected and the asserted ends (Ferrey 137). In this case, the court found that Congress had a rational basis for finding that surface coal mining on farmland affects interstate commerce in agricultural products and therefore Congress had not

exceeded the scope of its commerce powers in enacting the Surface Mining Act of 1977 (30 U.SC § 1202, et sequitur). The court further reasoned that legislative acts which adjust the equities of economic life come to the court “with a presumption of constitutionality” (Hodel). With this case and others like it, the court has generally upheld the federal government’s power to legislate and enforce environmental regulations under its commerce powers (Ferrey 137). However, the recent decisions in the SWANCC and Rapanos cases have restricted and refined the broad grant of authority traditionally given to the agencies to further define and enforce Congress’ legislative directives for environmental protection. History of Regulation of US Waters: Since the ratification of the Constitution, Congress has enacted a variety of laws to help preserve the value and integrity of our nation’s waters (see Rivers and Harbors Act of 1899 (33 U.SC § 401,403,407), Federal Power Act (16 USC

791(a) et sequitur), and Federal Water Pollution Control Act Amendments of 1972 (33 U.SC § 1251 et sequitur) (“Clean Water Act”)). Since the exact nature and scope of federal jurisdiction over US waters is not defined anywhere in the Constitution, it has been up to the courts to decide the limits on federal authority over U.S waters under the Commerce Clause Early laws dealing with the regulation of US waters dealt strictly with navigable waters, which are contained in Source: http://www.doksinet Commerce Clause 8 Congress’ commerce powers under the Gibbons decision. Later cases further defined the outer reaches of “navigable waters” subject to federal jurisdiction. Traditionally, if a water body qualifies as “navigable water” under federal regulations, then it is subject to any regulatory requirements Congress chooses to impose under its Commerce Clause powers (Downing, et al 476). The ties between the Commerce Clause and navigability were again the center of debate

in the SWANCC and Rapanos cases. The Rivers and Harbors Act (RHA) of 1899 gave the federal government the power to address threats to the quality of navigable waters. The US Army Corps of Engineers’ Section 10 and “Refuse Act” provisions sought to regulate activities affecting navigable waters. Section 10 required permits for the dredging, filing, or obstructing of navigable waters, while the “Refuse Act” provision sought to control pollution into navigable waters (Albrecht and Nickelsburg 3). However, the federal government generally interpreted these provisions narrowly, thereby leaving water quality issues primarily within the states’ domain. Due to the states’ inaction in this area and a growing national movement for improved water quality, the U.S Army Corps of Engineers recognized a need for a federal response to the pollution of U.S waters In 1968, the Corps made major revisions to its regulations governing the implementation of the “Refuse Act” and Section 10

provisions. Most importantly, the agency changed their permitting process to account for the proposed activity’s affect on the health of the water way, not simply its affect on navigation. They also began to assert their jurisdiction over traditional navigable waters to the fullest extent possible, which allowed for protection of a greater portion of the nation’s waters (Downing, et al 477). Despite the Corps more comprehensive approach to water protection, there was still national pressure on Congress to create a more comprehensive water pollution control program. Source: http://www.doksinet Commerce Clause 9 In 1972, Congress amended the Federal Water Pollution Control Act (FWPCA) to broaden federal regulation of pollution into “navigable waters.” In the amended FWPCA, known as the Clean Water Act, “navigable waters” are defined as the “waters of the United States” (FWPCA § 1362(7)). The legislative history of the Act (a 1972 House Report) shows that Congress did

not define navigable waters more explicitly because members intended the Act to have a broader reach than traditional navigable waters covered by the RHA. They feared that if the term were well defined, the courts would interpret its meaning more narrowly. The Corps and EPA used their regulatory authority to further define the term “waters of the United States” covered by the CWA (Downing, et al 479). However, exactly how broad a reach Congress intended for the term “navigable waters” has been the subject of much litigation. In three recent cases, the US Supreme Court has addressed the issue of the Corps authority to regulate wetlands as part of the “waters of the United States.” United States v. Riverside Bayview Homes: In United States v. Riverside Bayview Homes, 474 US 121 (1985), the US Supreme Court upheld the authority of the Corps to regulate wetlands adjacent to navigable waters, as defined under the CWA. After Riverside Bayview Homes began filling portions of

wetlands located on its property near Lake St. Clair, Michigan, the US Army Corps of Engineers filed suit against the company because they did not have a permit as required under CWA § 404. Riverside Bayview Homes then questioned the Corps authority to assert jurisdiction over the wetlands in question (Riverside Bayview). The U.S Supreme Court decided whether the Corps had jurisdiction over wetlands adjacent to navigable waters. The Court found that the “language, policies, and history” of the Act permitted the broader interpretation of “waters of the United States” the Corps used to assert jurisdiction in this case. Furthermore, they reasoned that Congress intended the term Source: http://www.doksinet Commerce Clause 10 “navigable” in the Act to be of limited import, and intended “to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term.” They emphasized

the fact that the waters in question were hydrologically connected to traditionally navigable waters, to the point were it would be possible for a person to swim from the wetlands to Lake Michigan (Riverside Bayview). This decision broadened Congress’ commerce powers from the traditional interpretation the courts had used under the Gibbons decision (Downing, et al 484). Riverside Bayview marked the first time that the courts addressed the issue of Congress’ authority to regulate waters not traditionally deemed navigable as part of a broader pollution control policy. In issuing this decision, the court found that Congress intended to extend its commerce powers to some waters not traditionally deemed navigable, and the court found no constitutional issues raised by Congress doing so. However, the issue of federal regulation over wetlands was not fully addressed in the Bayview decision. The US Supreme Court purposefully did not address whether Congress had intended to assert

jurisdiction over isolated wetlands, leaving the question for another day (Riverside Bayview). That day came in 2001, when the U.S Supreme Court decided the SWANCC case SWANCC v. US Army Corps of Engineers: The SWANCC court restricted the extent to which the Corps can assert jurisdiction over those waters falling into the Bayview category of “some waters” not deemed traditionally navigable. The Solid Waster Agencies of Northern Cook County selected as a waste disposal site an area that had once been an open sand and gravel pit. Since its abandonment, it had evolved into an area of seasonal ponds. The Corps asserted jurisdiction under the Commerce Clause of the U.S Constitution to regulate the wetland under their “migratory bird rule.” Under this rule, the Corps issued permits for the discharge of dredged Source: http://www.doksinet Commerce Clause 11 or fill materials into isolated wetlands under Section 404(a) of the Clean Water Act if migratory birds used the area

(SWANCC). The Corps denied SWANCC a CWA § 404 permit to fill the wetland. SWANCC then filed suit, challenging the authority of the Corps to regulate isolated wetlands using their migratory bird rule. The US Supreme Court ruled on whether CWA § 404 applies to all US waters, or only navigable waters. In SWANCC, the court ruled that the U.S Army Corps of Engineers did not have authority under the Commerce Clause of the U.S Constitution to regulate isolated wetlands under their “migratory bird rule.” The majority’s Commerce Clause analysis in this case differs in many ways from previous court decisions. The majority held that Congress had not clearly expressed its intent to regulate isolated wetlands as described in SWANCC because isolated wetlands are not explicitly in the statute. In doing this, they avoided addressing the issue of whether or not Congress could potentially regulate isolated wetlands under the Commerce Clause of the Constitution. They felt that when Congress

enacted the CWA, it had intended jurisdiction to be tied in some way to navigation in order to invoke the Commerce Clause. They reconciled this with the Bayview decision in noting that, “It is one thing to give a word limited effect and quite another to give it no effect whatever. The term ‘navigable’ has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” The court felt Congress had not demonstrated clear intent to reach waters that had nothing to do with navigability and were without a “significant nexus” to navigable waters. In Bayview, the waters in question had that nexus. The majority stated that “where an administrative interpretation of a statute invokes the outer limits of Congress’ [Commerce Clause] power, the US Supreme Court expects a Source: http://www.doksinet Commerce Clause 12 clear

indication that Congress intended that result.” Since Congress’ intent to regulate isolated waters is not clear in this case, the Court must assume that Congress did not intend to regulate there. Reading the case otherwise would upset the delicate federal-state balance established in US v. Bass, where the court held that unless Congress “states its purpose clearly,” the court will assume Congress did not explicitly intend to cause upset (SWANCC). The majority’s analysis thoroughly addresses the Constitutional and federalism issues inherent in using a broad interpretation of “waters of the United States” and clearly articulates that wetlands must possess a “significant nexus” to navigable waters in order for the Corps to assert jurisdiction using Congress’ commerce powers. However, some inconsistencies in how the majority addresses the requisite criteria for the nexus to exist make it difficult for the Corps to know exactly how strong a nexus the court will require

for them to assert jurisdiction. For example, the court reaffirms their holding in Riverside Bayview that some waters not deemed navigable under the Gibbons test fall within the Corps jurisdiction, while at the same time noting that more narrow assertions of Corps jurisdiction are not misinterpretations of Congress’ intent under the CWA. The minority’s Commerce Clause analysis is more reminiscent of traditional court decisions regarding environmental issues. The minority held that Congress wrote the term “navigable” out of the CWA when it did not include navigability in the definition of “navigable waters.” They did not find the Commerce Clause issues inherent in removing navigability as a requirement for establishing jurisdiction as troubling as the majority and asserted that these issues had already been addressed in previous cases, such as Hodel and Lopez. The minority noted that Hodel established that “the Commerce Clause empowers Congress to regulate particular

‘activities causing air or water pollution, or other environmental hazards that may have effects in more than one State.’” They argued that the Source: http://www.doksinet Commerce Clause 13 dredge and fill of isolated wetlands could carry powerful interstate externalities, especially at the aggregate level. Furthermore, they reasoned that the dredge and fill of wetlands fell under the third class of activities established in Lopez, those that ‘substantially affect’ interstate commerce.” They argued that the dredge or fill of an isolated wetland would have an aggregate economic impact as a class of activities and believed that the dredge or fill of a wetland is always undertaken for economic reasons and therefore causes an economic impact, unlike the activities struck down in Lopez and Morrison. Furthermore, they noted that the Corps had asserted jurisdiction only because the activity was the discharge of material into migratory bird habitat. Had either the discharge or

birds not been there, the Corps would have not asserted jurisdiction (SWANCC). They also addressed the issue in the broader context of federal jurisdiction over the environment. The differing interpretations of the case within the Supreme Court represent two divergent views on the extent and source of federal authority to regulate the environment. The minority opinion considers the issue first in terms the authority granted the Corps by Congress in the CWA. They then frame the issue in terms of the federal government’s power to regulate the environment due to potential macro-level affects. Conversely, the majority discusses the issue simply in terms of congressional authorization and neglects to address the Constitutional issue of congressional authority to regulate activities not directly tied to interstate commerce. The majority in the SWANCC decision purposely avoided addressing the issue of whether congressional regulation of all US waters under the Commerce Clause is permissible

under the Constitution. Their decision did note that such regulation would “invoke the outer limits of Congress’ power.” Since the minority did not have issue with Congress invoking its Commerce Clause powers in this manner, and concluded that Congress had intended that result in this case, it is slightly unclear whether the court would have serious issue with Congress legislating further in this matter. However, Source: http://www.doksinet Commerce Clause 14 when examined in the context of the court’s previous record on environmental issues, it becomes apparent that if Congress clearly expressed its intent to regulate all waters of the United States, the court would uphold that use of Congress’ commerce powers, especially considering the outcome of the Rapanos decision. Rapanos v. United States: In Rapanos, the court issued three separate opinions on the issue of the Army Corps of Engineers’ jurisdiction over petitioner John Rapanos’ Michigan wetlands. Rapanos had

backfilled three wetlands without a Corps CWA § 404 permit, so the United States brought civil enforcement proceedings against him. Rapanos questioned the authority of the Corps to regulate his wetlands, which were located near ditches and drains. The main issue before the U.S Supreme Court was the extent to which the Corps must prove a “hydrologic connection” exists between wetlands and nearby ditches and drains, which eventually flow into navigable waters, in order to assert jurisdiction. Justice Scalia wrote the plurality opinion, in which he was joined by three justices. Justice Kennedy concurred with the plurality in judgment, but did not join in the plurality in their interpretation of the law. He wrote a more narrow opinion which is likely to be the binding precedent because no opinion commanded a majority of the justices. Justice Stevens, joined by three justices, wrote for the dissent These opinions each represent a dramatically different interpretation of Congress’

intent and authority under the CWA. In the plurality opinion, Justice Scalia attempted to further limit the jurisdiction of the Corps under the CWA. The plurality found that the term “waters of the United States” includes only relatively permanent water bodies, not intermittent streams or channels. They noted that drainage ditches are defined in the CWA as point sources, so they cannot also be classified as waters of the United States. The plurality then turned its attention to the issue of Source: http://www.doksinet Commerce Clause 15 wetlands. Since it’s often unclear where a water body ends, the Corps should use its discretion by relying on the connection between the wetland and the water. However, the court found the Corps jurisdiction in these cases to be extremely narrow. They devised a two part test to assert jurisdiction. First, the adjacent channel must contain a “water of the United States,” as defined above. Second, the wetlands must have a continuous surface

connection to that water which would make it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins. In the absence of the aforementioned factors, the plurality rejected Kennedy’s “ecological interconnection” theory that forms the basis for his analysis (Rapanos). The plurality test is unlikely to become binding precedent because it does not represent a majority of the justices. Its use will likely be limited to areas in which it concurs with Kennedy’s dissent. Emory Law School Professor William Buzbee noted that “Justice Scalia does not have the votes to speak for the court. Justice Kennedy repeatedly rejects the Scalia opinion’s approach as ‘inconsistent with the Act’s text, structure, and purpose,’ as do the dissenters” (Buzbee 4). However, one journal article suggests that the Scalia test may be more influential simply because it is clearer. It pointed out that one district court has already used the Scalia opinion because the court

found the Kennedy test “vague” and “subjective” (Kampfer 4). It is important to note that use of Scalia’s opinion by courts may be inconsistent with precedent that requires the narrowest opinion be binding when the court fails to reach a majority. Both the Kennedy concurrence and the plurality voted to send the case back to the lower court. However, Kennedy’s reasoning for sending the case back is vastly different from that of the plurality. Kennedy’s opinion focused on the SWANCC decision, which held that the Corps jurisdiction over wetlands depends on the existence of a “significant nexus” between the wetlands in question and traditional navigable waters. He felt that the lower Source: http://www.doksinet Commerce Clause 16 court did not consider all necessary factors in determining whether the wetlands in question possessed that nexus. He strongly disagreed with Scalia’s exclusion of wetlands lacking a continuous surface connection, but also felt that Stevens

went too far in the other direction. Stevens favored a broad, eco-system wide approach to regulating waters and would have deferred to any regulatory interpretation of “waters of the United States.” Like Scalia, Kennedy felt that the word “navigable” in the CWA is of importance in invoking Congress’ commerce powers, and Kennedy felt that Stevens didn’t give the word enough importance. Kennedy set forth a broad, ecologically-based test for determining if a wetland possesses a “significant nexus” to navigable waters. This nexus must be assessed in terms of the CWA’s goals and purposes. Kennedy’s opinion held that the Corps may assert jurisdiction if the wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other waters more readily understood as ‘navigable.’” He clarified that the wetland’s effects on water quality cannot be speculative or insubstantial.

Until the Corps implements a rulemaking that establishes exactly what types of wetlands meet Kennedy’s “significant nexus” test, Kennedy held that the Corps “must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries.” He noted that a caseby-case approach was best to avoid significant Commerce Clause concerns that would occur absent a specific rulemaking (Rapanos). This decision further refines the requisite nexus needed to invoke Congress’ commerce powers. Commerce Clause Analysis of Decisions: SWANCC and Rapanos both address the Commerce Clause issues inherent in broadening the scope of federal regulation into land use regulation; an area that has traditionally fallen under the state’s police power. In Bayview and SWANCC, the court Source: http://www.doksinet Commerce Clause 17 defined the reaches of the CWA. The court found that the while the regulation of adjacent wetlands fell

under the purview of the CWA due to their connection to navigable water, the regulation of isolated wetlands based on some perceived aggregate economic impact would test the outer boundaries of Congress’ Commerce Clause powers. Absent clear statutory language that Congress intended to extend federal regulation, the court would not allow that interpretation of the Act. Rapanos addressed a situation in which it was uncertain if the wetlands were adjacent or isolated, and attempted to clarify the legal test for adjacency (McDonald). The plurality sought to read the Act narrowly and limit federal power to regulate waters under the Commerce Clause, but could not command enough votes to deliver a majority opinion. Kennedy’s concurrence placed fewer limitations on federal power, but until a new rule is issued, his attempt to reconcile the constitutional issues inherent in a broad interpretation of regulatory power with a more scientific definition of hydrologic connections creates an

uncertain climate for the regulators charged with asserting jurisdiction. Buzbee notes, “If anything, the five justices rejecting a Commerce Clause attack broadened federal power from where it might have gone after SWANCC.” Since Kennedy defined “significant nexus” to include scientific criteria, more water is likely to fall under Corps jurisdiction than had the court had limited Corps jurisdiction to wetlands with an obvious surface connection to navigable waters or their tributaries. This broadening of federal power is more consistent with how the courts traditionally view environmental protection than was the SWANCC decision. Additionally, Kennedy’s inclusion of scientific criteria modernizes environmental regulation while respecting the limitations the Commerce Clause places on federal regulation. Kennedy’s test recognizes that scientific methods have progressed to the point where science can be used as a determining factor in the interconnectedness of ecosystems. He

intends for Source: http://www.doksinet Commerce Clause 18 science to be the deciding factor in whether certain waters possess the requisite nexus to navigable water for the Corps to assert jurisdiction. However, he is clear that the federal government must have a defined and concrete set of criteria for establishing this “significant nexus,” and that the connection to navigable waters must be real and substantial in order for the Corps to constitutionally assert jurisdiction. In light of the SWANCC and Rapanos decisions, there is now a set of criteria that must be used for an agency to constitutionally assert jurisdiction over wetlands. Riverside Bayview already established that wetlands with an obvious surface connection to navigable waters are under federal jurisdiction. SWANCC then made clear that isolated wetlands, defined as those wetlands without a “significant nexus” to navigable waters, are not under federal jurisdiction under the current language of the CWA.

Rapanos set forth the critical test in deciding whether wetlands are in the adjacent, federally regulated category, or the isolated category that cannot be federally regulated. To assert jurisdiction, wetlands must significantly affect the integrity of a navigable water. This would seem to imply that a wetland would have to exhibit a strong hydrological connection to a navigable water or a tributary to a navigable water (Kampfer 3). The extent to which this will affect the actual jurisdiction of the Corps depends on the threshold the agency establishes for determining if a wetland has “significant affects” on navigable water when they set forth the scientific criteria they will use to examine the hydrologic connection between water bodies. Implications of SWANCC and Rapanos SWANCC and Rapanos have defined the way that the U.S Supreme Court will approach constitutional questions of federal jurisdiction. The rulings were both consistent with the Lopez test, as both used the

aggregate economic impact on interstate commerce test as the basis for their analysis. In SWANCC, the court found that the agency could not prove Source: http://www.doksinet Commerce Clause 19 an aggregate impact on interstate commerce due to the wetland’s isolation. However, in Rapanos, the court established that filling the wetland must have a significant affect on traditionally navigable water in order to be regulated as an economic activity and meet the Lopez “aggregate impact” test. The test set forth in both cases ties the federal regulation of wetlands to the ability of the federal agency to prove that the Lopez test for regulation is met. Kennedy’s test defers to a set of scientific criteria that the Corps must establish in order to prove that a wetland “significantly” affects navigable waters. There is some ambiguity inherent in this scientific approach to the “significant nexus” test that leaves the true implications of the Rapanos case on the Commerce

Clause uncertain. The agency must exercise caution in establishing the threshold they will use to determine the affects of a wetland on navigable waters, as this rule is likely to be litigated once established. However, Kennedy sets forth enough parameters for the elements that must be established to invoke Congress’ commerce powers that agencies should be able to establish criteria and threshold levels that will allow the courts to grant the Corps’ rulemaking deference under Chevron (see Chevron U.SA v Natural Resources Defense Council, Inc, 467 US 837 (1984)) The limitations SWANCC placed on the federal government’s jurisdiction over isolated wetlands was hailed as a victory for private property groups. SWANCC was the first time in recent history when the courts limited the federal jurisdiction of one of the major environmental laws. Many felt that this decision would allow the states to step in and create programs if their state felt it necessary to give isolated wetlands

additional protection and would make federal regulators think twice before asserting jurisdiction under a speculative link to interstate commerce. Joseph Bast of the Heartland Institute stated, “The court’s decision did not leave wetlandsunprotected. Land use historically has been regulated by private property rights, markets, tort law (laws concerning trespass and nuisance), and local Source: http://www.doksinet Commerce Clause 20 governments” (1). A similar sentiment was also voiced in connection to the Rapanos decision. Some feel that the federal regulatory response to the Rapanos decision will leave room for additional state regulation and private, incentive-based systems to enter into play. Law Professor Jonathan Alder argues that state and private efforts to protect wetlands have been “crowded out” by “an overzealous interpretation of federal jurisdiction.” He notes that when federal efforts are inefficient, misdirected, or ineffective (all accusations leveled

against the Section 404 program), it reduces environmental conservation. If the federal government asserts jurisdiction over wetlands only in those instances where there’s a particular national interest, then the federal programs will complement and support private or state-based programs ( Alder 7). However, many fear the reverse side of Alder’s argument may actually transpire. Since the SWANCC decision, few states have developed programs to protect their isolated wetlands. Indeed, many of those states that responded were simply reinforcing already existing wetlands protection programs (Tollefson 542). In the Thomas Jefferson Law Review, Kaila Tollefson noted that states that leave wetlands unprotected “begin to profit from the destruction of wetlands to facilitate development and agricultural interests.” When states have an incentive to leave isolated wetlands unprotected, it creates a “race to the bottom” that injures environmental protection efforts (Tollefson 544). She

argues that since isolated wetland ecosystems frequently have intrinsic national value, their protection should not be left to the often inconsistent efforts of the states. However, this approach would again broaden federal jurisdiction beyond what the courts have deemed acceptable under the Commerce Clause, so they are unlikely to gain much legal ground until the court decides to address the issue again. Regardless of one’s view of the best method to protect wetlands, all agree that a new federal rulemaking is necessary. Source: http://www.doksinet Commerce Clause 21 In his Rapanos concurrence, Chief Justice John Roberts noted that the Rapanos case need not have happened had the Army Corps of Engineers issued a rulemaking in response to the SWANCC decision. Now, the Corps is challenged with attempting to define the “significant nexus” in light of SWANCC, the Rapanos plurality decision and Kennedy’s Rapanos concurrence. This rulemaking will likely be subject to more

challenge than had it occurred immediately after SWANCC simply because it now must incorporate the guidance of all the decisions. This means that further litigation is inevitable In the mean time, federal agencies are facing the additional time and expense of asserting jurisdiction over contentious wetlands on a case-by-case basis. The lack of a federal rulemaking is also a burden to the regulated community. There’s considerable uncertainty surrounding the need to apply for federal permits, because different field offices are using different tests (Kampfer 5). Also, it is uncertain exactly what classifies a wetland as possessing the “significant nexus” required to assert federal jurisdiction. Source: http://www.doksinet Commerce Clause 22 CONCLUSION In recent years, Congress’ ability to regulate activities under the Commerce Clause has evolved due to judicial review of legislation. This has affected the way that the courts view environmental legislation and has often

broadened the scope of activities that fall within their purview. However, the courts must first establish congressional intent to regulate the area or activity in question. SWANCC demonstrated that without a finding of clear congressional directives, the question of the Constitutionality of a law may never be answered. Both the majority and minority opinions in SWANCC raise interesting questions of congressional authority that could have a far reaching impact on the balance of federal and state power. The Rapanos case further refined the SWANCC Commerce Clause analysis, establishing in the Kennedy concurrence what should be considered in evaluating the “significant nexus” necessary to invoke Congress’ commerce powers. With this decision, Kennedy broadened the Commerce Clause analysis from where it might have gone had SWANCC been interpreted narrowly. Unlike the plurality decision, Kennedy sought to incorporate scientific knowledge of wetland ecosystems into his Commerce Clause

analysis. The result of this modernizing of Congress’ commerce powers has yet to felt in the regulatory community, but it is likely to cause considerable uncertainty until a new rulemaking is promulgated and subject to litigation. However, one thing is certain: With such a powerful and important relationship at play, these issues are sure to be litigated for years to come. Source: http://www.doksinet Commerce Clause 23 WORKS CITED Alder, Jonathan. “Testimony Before the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water.” United States Senate 1 August 2006. http://epwsenategov/hearing statementscfm?id=259992 Bast, Joseph L. “Protecting wetlands, destroying freedom” Environment News The Heartland Institute. May 1, 2002 Buzbee, William. “Testimony Before the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water.” United States Senate 1 August 2006. http://epwsenategov/hearing statementscfm?id=259992 Downing, et

al. “Navigating Through Clean Water Act Jurisdiction: A Legal Review” Wetlands. Vol 22, No 3 September 2003 Federal Water Pollution Control Act. 33 USCA § 1251 to 1387 Ferrey, Steven. Environmental Law New York: Aspen Publishers 2004 Gibbons v. Ogden 22 US 1 (1824) Gonzales v. Raich 545 US 1 (2005) Guzy, G. and Andersen, R Supreme Court Ruling Concerning CWA Jurisdiction over Isolated Waters. 19 January 2001 http://wwwaswmorg /fwp/swancc/legal.pdf Hodel v. Indiana 452 US 314 (1981) Kampfer, Christopher. “Supreme Court Narrows Scope of Federal Jurisdiction under CWA” Memorandum to Colorado Bar Association. 11 July 2006 http://wwwcobarorg /Docs/US%20Supreme%20Court%20Rapanos%20Memo%2Epdf McDonald, Molly. Interview with EPA General Counsel Ann R Klee Personal Interview 26 July 2006. Rapanos v. United States 547 US (2006) Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers 531 U.S 159 (2001) Tollefson, Kaiya. “Note: If Marijuana, then Marshes: Using the

‘Comprehensive Scheme’ Principle in Gonazales v. Raich to Regulate ‘Isolated Wetlands” Thomas Jefferson Law Review. Volume 28, Number 3 (Spring 2006) 513 "The Constitution of the United States." Article 1, Section 8 United States v. Lopez 514 US 549, 558559 (1995) Source: http://www.doksinet Commerce Clause 24 United States v. Morrison 529 US 598 (2000) United States v. Riverside Bayview Homes, Inc 474 US 121 (1985)