• E-mail
• Print
• Comment
• Font Size
• Digg
• del.icio.us
• Discuss article

SWANCC's Clear Statement: A Delimitation of Congress's Commerce Clause Authority to Regulate Water Pollution

Posted on: Wednesday, 17 August 2005, 03:00 CDT

INTRODUCTION

Perhaps the most controversial aspect of federal water pollution law is wetland regulation.1 Wetlands are typically marshy or swampy areas with hydrologie soils and vegetation. Their ecological value is widely recognized,2 but wetlands often stand in the way of lucrative commercial development projects.3 Thus, the battle over the validity of federal wetland regulation is a classic fight between environmentalists and industry.4 The wetlands controversy is also paradigmatic of the perpetual struggle to define the constitutional limits to federal regulation.

The country's main water pollution control law, the Clean Water Act (CWA), purports to regulate all "navigable waters,"5 which it defines as "waters of the United States."6 Although wetlands are not themselves navigable, section 404 of the CWA requires obtaining a federal permit from the Army Corps of Engineers ("the Corps") before discharging "dredged or fill material"7 into wetlands. The permit requirement applies to individual property owners and commercial developers alike,8 and is therefore a significant impediment to development projects that involve wetlands.9 In addition, critics have always maintained that Congress's regulatory power does not extend to isolated wetlands because they are not navigable.10

The Federal Government's constitutional authority to regulate water pollution arises from the Interstate Commerce Clause.11 Historically, Congress's power over waters was tied to the national need to regulate navigation as an aspect of commerce.12 This authority has come to be known as the "navigable waters doctrine" and was expanded by Congress early on to serve environmental goals.13 In fact, Congress's authority under the doctrine to regulate pollution of navigable-in-fact waters - waters that are actually navigable, as distinguished from "navigable waters," which has become a term of art - has been well-settled for more than a century.14 However, the extent to which the federal government can constitutionally regulate waters that are not navigable-in-fact has never been clear, and is controversial to this day.

Proponents of federalism in this area have always maintained that regulation of intrastate wetlands should be left to the states as part of the traditional state authority over land use.15 Such federalism concerns, of course, emerged as a driving force in the Supreme Court's Commerce Clause jurisprudence in the mid-1990s. The Court's opinions in United States v. Lopez16 and United States v. Morrison,17 striking down Commerce Clause-based federal regulation of criminal activity, only increased the calls for scaling back the most controversial wetland measures.18

Any Commerce Clause-based regulation must now be evaluated through the lens of the Lopez Commerce Clause framework.19 In Lopez, the Court denied federal jurisdiction to criminally prosecute Alfonso Lopez for violating the Gun-Free School Zones Act (GFSZA) on the ground that the law was not within Congress's power to regulate interstate commerce. In so holding, the Court stated that it was refusing to extend the federal commerce power any further than it had been extended in the previous half-century.20 The Lopez Court appraised the Court's previous Commerce Clause cases, and concluded that three broad categories of activity are recognized as within Congress's regulatory authority.21 First, the Court recognized Congress's plenary authority to regulate the use of channels of commerce.22 Second, Congress is empowered to regulate the instrumentalities of commerce, identified as persons or things in interstate commerce.23 Third, Lopez recognized Congress's authority to regulate activities that substantially affect interstate commerce.24 Two of these categories are potential sources of water pollution laws. Congress may legislate to protect the channels of commerce, including "navigable waters."25 Congress may further regulate activities that pollute waters where those activities substantially affect interstate commerce.26

The navigable waters doctrine was traditionally a subset of the channels-of-commerce power and dates back to Chief Justice Marshall's opinion in Gibbons v. Ogden.21 However, until the Supreme Court considered the issue in 2000,28 it was widely thought that the navigation power allowed Congress to regulate waters that substantially affected commerce.29 In fact, then-Justice Rehnquist wrote for the Court in Kaiser Aetna v. United States that "congressional authority over the waters of this Nation does not depend on a stream's 'navigability.'"30 Rehnquist went on to write that the federal navigation power - or even the presence of water - is irrelevant in determining whether the regulated activities are "susceptible of congressional regulation under the Commerce Clause," since the only relevant inquiry is the effect on interstate commerce.31 This language illustrates that federal water regulation fell into what the Lopez Court subsequently termed the "substantial effects" category, rather than the "channels of commerce" category.32

After Kaiser Aetna, and an important case from the U.S. District Court for the District of Columbia holding that the Corps must define "navigable waters" broadly to include as many waters as possible under the Commerce Clause,33 the Corps promulgated CWA- based regulations over waters based on their effect on interstate commerce.34 Thus, the judicial willingness to consider the navigable waters doctrine as coextensive with the substantial effects power, rather than the channels-of-commerce power, paved the way for expansive federal regulations under the CWA.35 The agencies soon asserted, and the courts upheld, jurisdiction over intrastate, isolated wetlands, even when situated completely on private property - all based on a substantial effect on interstate commerce.36

Despite the seemingly limitless expansion of federal jurisdiction in this area, the term "navigable waters" remained the operative statutory language. Although the language seemed like something of a holdover from a bygone era,37 it surprisingly became the centerpiece of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC).38 SWANCC involved a challenge to the "Migratory Bird Rule" (MBR),39 which served as the basis for federal jurisdiction over abandoned gravel pits that had filled with water40 and were used by migrating birds in their interstate travels.41 The municipal consortium challenging the federal permit requirement argued that Congress could not require a section 404 permit because there were no "navigable waters" involved.42 The consortium also claimed that federal regulatory jurisdiction over intrastate wetlands was not within Congress's Commerce Clause powers.43 The Corps countered that the CWA's legislative history and broad definition of "navigable waters" as "waters of the United States" - along with the Court's past expansive reading of the navigable waters doctrine - indeed permitted regulation of any water that substantially affected commerce. Here, the substantial effect was the several million dollars spent annually by hunters and bird watchers on migrating birds, who necessarily use water pits as they migrate.44

The Court never reached the validity of the Corps' argument, however. In deciding SWANCC, the same 5-4 majority that decided Lopez construed the CWA narrowly to find that Congress had not expressed a "clear intent" to apply section 404 to isolated, intrastate waters based only on a substantial effect on interstate commerce.45 For the Court to even reach the issue of whether the agency's interpretation was constitutionally valid required a clear statement from Congress that the agency was permitted to promulgate regulations that "would result in a significant impingement of the States' traditional and primary power over land and water use."46 To avoid these "significant constitutional and federalism questions," the Court held that section 404's jurisdiction was limited to "navigable waters," a term that must be interpreted to exclude waters that merely affect commerce, and are neither navigable-in- fact waters, nor connected to any such waters.47

A slew of challenges have been brought to CWA-based wetland regulations in the wake of SWANCC, with varying results in the lower courts.48 The courts are split as to whether the effect of SWANCC was to limit CWA jurisdiction to only those wetlands that are directly adjacent to navigable-in-fact waters, or to allow federal regulation of wetlands where there is any hydrological connection to "navigable waters." Because SWANCC itself did not undertake a constitutional analysis, these post-SWANCC cases mostly interpret the CWA, and what SWANCC said about its terms.

This Note explains the constitutional framework of federal water pollution regulation, and uses post-SWANCC cases for illustration and support in that endeavor. Part I argues that SWANCC's avoidance of the difficult constitutional issue through the use of the clear statement rule revives the navigable waters doctrine as a channels- of-commerce power. One important implication of this argument is that any regulation, like the MBR, that invokes substantial effects- based reasoning is not valid under the CWA.49 Part II argues that because the channels-of-commerce power is both \well-settled and broad in scope, the federal government can regulate any body of water that is hydrologically connected to a navigable-in-fact waterway. Part III addresses the structural federalism concerns underlying Lopez, arguing that the hydrological connection test advocated for in Part II does not offend principles of federalism. Part IV applies the Lopez substantial effects analysis to potential federal regulation of isolated, intrastate wetlands, concluding that such regulation is valid because the filling of wetlands is typically an integral aspect of economic activity.

I. THE NAVIGABLE WATERS DOCTRINE AS A CHANNELS-OF-COMMERCE POWER

SWANCC's narrow construction of the CWA, and its term "navigable waters," necessarily precludes federal jurisdiction on the basis of a substantial effect on commerce, thereby reviving the navigable waters doctrine as a channels-of-commerce power. The narrow statutory construction employed in SWANCC stemmed from the Court's desire to avoid a controversial constitutional analysis that it viewed as "needless" in light of a statutory holding that raised no significant constitutional questions.50 "This concern is heightened," the Court wrote, "where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."51 The Court then alluded to the substantial effects arguments that might justify the MBR, noting that it "would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce."52 However, the Court refused to undertake this substantial effects analysis on the ground that an assertion of such a far-reaching constitutional authority went well beyond the statutory authority conferred by the term "navigable waters."53 The Court indicated that the navigable waters doctrine is distinct from the substantial effects prong of Congress's commerce power by noting that inclusion of the term "navigable waters" in the CWA indicated that Congress intended for jurisdiction to at least be related to navigable-in-fact waters.54 Thus, the Court made clear that the statutory term "navigable waters" indicates an exercise of the channels-of-commerce power, and not the more controversial substantial effects power.

Even though SWANCC avoided the issue of how Lopez affects federal constitutional authority to protect the environment, the same strictures of federalism that guided the Lopez decision also guided the Court's statute-based holding in SWANCC. Indeed, it was through the use of a now familiar, but still controversial,55 canon of statutory construction known as the "clear statement rule"56 that the even more controversial constitutional analysis was avoided. The precise principle of statutory construction relied on by the SWMMTC Court is that agencies will not be permitted to construe statutes in such a way that raises serious constitutional doubts.57 For the Court to consider the constitutionality of questionable agency action, a clear statement that Congress intended such action is required.58 Professor Cass Sunstein has noted that this canon of statutory construction goes "well beyond" the uncontroversial notion that agencies cannot construe statutes in such a way that makes them unconstitutional.59 Rather, all that is necessary in order for the reviewing court to invoke constitutional avoidance is that the constitutional issue must be "serious and substantial," and that the statute be fairly capable of an interpretation contrary to that offered by the agency.60 Because of the presence of the term "navigable waters" in section 404, the Court concluded that an alternative interpretation of the navigable waters doctrine as a channels-of-commerce power is just as plausible, and avoids the thorny federalism questions raised by the substantial effects rationale offered by the Corps in defense of the MBR.61 The navigable waters doctrine - interpreted as a channels-of-commerce power - does not raise such serious constitutional questions; otherwise the Court could not have relied on that term in avoiding the difficult constitutional issue.

The relevant scholarship and policymaking has largely overlooked the Court's use of this canon, and what it means for the current scope of federal jurisdiction to regulate water pollution.62 For instance, the Clinton administration issued a guidance memorandum interpreting SWANCC on the narrowest possible grounds, as invalidating the MBR, but not CWA jurisdiction based on other ways in which isolated waters could affect interstate commerce.63 The memorandum urged regulators to consult legal counsel where there may be alternate "connections with interstate commerce [which] might support the assertion of CWA jurisdiction over 'nonnavigable, isolated, intrastate waters under subsection (a)(3).'"64

Environmental advocacy groups have also urged a narrow reading of SWANCC on the ground that the Court only specifically invalidated the MBR.65 This interpretation would allow for CWA jurisdiction over wetlands that are used, for example, to irrigate crops that are transported and sold in interstate commerce.66

These arguments are flawed because they ignore the SWANCC Court's reasoning that the CWA does not authorize federal jurisdiction over waters based on a constitutionally questionable rationale. As noted above, the Court not only invalidated federal jurisdiction based on the MBR, it refused to undertake a Lopez substantial effects analysis because the Court concluded that the CWA term "navigable waters" does not support a constitutionally questionable substantial effects-based regulation. The Court's narrow method of statutory construction means that had the regulation at issue asserted any substantial effects rationale - migratory birds, crops sold in interstate commerce, etc. - the outcome would have been the same. Thus, neither the Clinton administration guidance nor the environmental groups' position is valid under the reasoning of SWANCC, which cabins federal jurisdiction under the CWA in Congress's power to regulate the channels of interstate commerce.67

SWANCC's use of the clear statement rule in refusing to consider a substantial effects-based regulation under the CWA means that the statute is an exercise of Congress's authority over channels of commerce. As a channels-of-commerce power, the navigable waters doctrine requires some connection to navigable-in-fact waters. This authority does not extend to waters which substantially affect interstate commerce. Thus, any assertion of jurisdiction over waters that are not somehow connected to navigable-in-fact waters is not valid under the statute.

II. CONGRESS'S AUTHORITY TO REGULATE WATER POLLUTION UNDER THE CHANNELS-OF-COMMERCE POWER IS WELL-SETTLED AND BROAD IN SCOPE

This Part clarifies the extent of the navigable waters doctrine as a channels-of-commerce power, something the Fourth Circuit has acknowledged has never been "entirely clear."68 Indeed, over what waters the CWA currently permits federal regulations is a debated issue among the lower courts in the wake of SWANCC. Most post- SWANCC decisions have upheld federal jurisdiction over wetlands that are hydrologically connected to a navigable-in-fact body of water.69 Section ILA argues that the hydrological connection test identified by this line of cases is a proper delimitation of Congress's authority over channels of commerce. This rationale is supported by the Lopez Court's recognition of the broad reach of Congress's powers to not only regulate channels of commerce, but also to protect them from external sources of harm.70 A minority of courts has interpreted the SWANCC decision broadly, to require that any regulated body of water must have a "significant nexus"71 with, or be directly adjacent to, a navigable waterway.72 Section II.B argues that this line of cases unduly limits federal jurisdiction to regulate the channels of commerce.73

A. Toward a Hydrological Connection Test

Congress's power over the channels of commerce is broad enough to support federal jurisdiction over wetlands that are hydrologically connected to navigable-in-fact waters. The channels-of-commerce power is plenary and is given great deference by the Court74 because it does not raise the important federalism concerns that regulation of an intrastate activity affecting commerce does.75 Rather, the navigable waters doctrine assumes that navigable waters are tied to national interests - and, presumably, a legitimate exercise of federal power - while nonnavigable waters are tied to local interests and are not the proper subject for federal regulation.76 In addition to being well-settled, Congress's authority to regulate the channels of commerce is extensive. Lopez reaffirmed the broad scope of this power by quoting from Caminetti v. United States, which upheld the Mann Act barring the transport of "any woman or girl" in interstate channels for an "immoral purpose."77 The Act was within congressional authority, even though the defendant's conduct - transporting a woman across state lines to "be and become his mistress and concubine"78 - was entirely noncommercial. Thus, Congress's authority to regulate the channels of interstate commerce is also quite broad in scope, properly barring the "injurious uses" of the nation's channels of commerce.79

In 1976 the Sixth Circuit Court of Appeals applied this rationale in upholding federal jurisdiction over nonnavigable tributaries in United States v. Ashland Oil and Transportation Co.80 The court noted that water pollution is a "direct threat to navigation - the first interstate commerce system in this country's history and still a very important one . . . . It would, of course, make a mockery of those powers if [Congress's] authority to control pollution was limited to the bed of the navigable stream itself."81 The court went on to warn that in the absence of federal control,the tributaries could then be used "as open sewers" carrying waste into the navigable waters and completely undermining the federal regulations.82 This rationale is the basis for federal regulation of waters that are not themselves navigable, but are hydrologically connected to navigable waters, and is still just as valid in the wake of SWANCC as it was when the Ashland oil court issued its holding.

In Headwaters v. Talent Irrigation District,83 the first significant post-SWANCC CWA case, the Ninth Circuit held that even a tenuous hydrological connection was sufficient to support federal jurisdiction.84 Noting that this holding was necessary to preserve the central goal of the CWA, which SWANCC left intact, the Headwaters court reasoned that "[t]he [CWA] is concerned with the pollution of tributaries as well as with the pollution of navigable streams, and 'it is incontestable that substantial pollution of one not only may but very probably will affect the other.'"85

The Fourth Circuit followed suit in United States v. Deaton,86 finding even intermittent and very distant hydrological connections to be sufficient to support CWA jurisdiction. The Deaton court specifically held that the channels-of-commerce power permits Congress to legislate to prevent the injurious use of navigable waters, as it did in enacting the CWA.87 Thus, the court upheld federal jurisdiction over wetlands adjacent to a nonnavigable artificial ditch that flows into the navigable Wicomico River, because there is a "hydrologic connection between the Deaton wetlands and navigable waters."88

More recently, in Treacy v. Newdunn Associates,89 the Fourth Circuit found wetlands90 situated on private land, and separated by an interstate highway from a traditionally navigable river, to be within CWA jurisdiction.91 The court found that the wetlands were historically connected to the Stony Run River, but following the construction of a highway, the connection was more attenuated, through intermittent surface waters over 2.4 miles of streams and manmade ditches.92 In support of its holding that the wetlands were within the meaning of "navigable waters,"93 the court noted that SWANCC acknowledged that "Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands 'inseparably bound up with the "waters" of the United States.'"94 Accordingly, SWANCC merely held that "the Corps's attempted exercise of jurisdiction over isolated ponds that had no hydrologic connection whatsoever to navigable waters could not stand."95

The Fourth Circuit's interpretation is correct because, as demonstrated by past navigable waters cases,96 and even under SWANCC, the federal navigation power is extensive enough to support measures that seek to prevent pollution from entering navigable waters, whether directly or via a hydrological connection. The Fourth Circuit has thus adopted the proper standard, permitting the Corps to exert its jurisdiction over "any branch of a tributary system that eventually flows into a navigable body of water."97 To limit the navigable waters doctrine any further would unduly restrict Congress's well-settled authority to legislate against the injurious uses of the channels of interstate commerce.98

B. Restrictive Interpretations of the Navigation Power Unduly Restrict Federal Jurisdiction over Channels of Commerce

A few courts have issued more limited holdings that improperly restrict federal regulation.99 In Rice v. Harken Exploration Co.,100 an Oil Pollution Act (OPA)101 case, the Fifth Circuit determined that SWANCC precluded federal jurisdiction over any water that is not "actually navigable or is adjacent to an open body of navigable water."102 The court thus removed from the reach of federal regulators groundwater and a nonnavigable creek into which pollutants seeped, even though the pollutants from each found their way into the navigable Canadian River.103

More recently, the Fifth Circuit declared that neither CWA nor OPA jurisdiction is conferred by a hydrological connection, holding instead that a nonnavigable body of water is jurisdictional only if it flows "directly into" a navigable waterway.104 The court reiterated its definition of adjacency first announced in Rice, that "there must be a close, direct and proximate link."105 In the same vein as the Fifth Circuit cases, a New Jersey District Court held in FD&P Enterprises, Inc. v. United States Army Corps of Engineers106 that CWA jurisdiction, and thus the federal navigation power, had shifted away from a "hydrological connection" test and toward a "significant nexus" test.107

Both principle and precedent inveigh against such restrictive interpretations, however. First, the rationale employed by these courts unduly limits the federal navigation power as a Lopez category one power. One need look no further than Lopez itself for support of Ashland oil's and Newdunn's necessary-and-proper reasoning as it relates specifically to the federal power over channels of commerce. The Lopez Court noted the long-settled rule that this power includes the authority "to keep the channels of interstate commerce free from immoral or injurious uses."108 This has long included the regulation of nonnavigable waters from which pollution can flow into navigable waters.109

The CWA invokes the full extent of this constitutional principle.110 The Supreme Court recognized in United States v. Riverside Bayview Homes, Inc.111 that the statute extends to nonnavigable waters in order to keep the navigable waters free from pollution outlawed by federal regulations.112 The Court specifically sanctioned the Corps' argument for jurisdiction over hydrologically connected wetlands because they are "inseparably bound up with the 'waters' of the United States."113 In turn, SWANCC specifically endorsed Riverside Bayview's reasoning, alluding to the "significant nexus" between the wetlands and open water only to indicate what led the Riverside Bayview Court to uphold federal jurisdiction in that case.114 As SWANCC merely refused to undertake a substantial effects analysis,115 there was no indication in that case that the Court intended the navigable waters doctrine to itself be recast as a more limited power.

The FD&P Enterprises court's interpretation of the "significant nexus" language in SWANCC, as evidence that a "mere hydrological connection"116 to a navigable water is not enough to establish federal jurisdiction, is therefore inconsistent with precedent as well as the well-settled federal power to keep pollution out of navigable waters. Likewise, the Fifth Circuit's adjacency rationale unduly limits federal jurisdiction to the facts of Riverside Bayview, completely ignoring that Court's view of wetlands as inseparably bound up with waters of the United States.

Both the adjacency and significant nexus tests are also less manageable than the hydrological connection test.117 It is unclear what a significant connection is - one that is obvious to the naked eye, or one through which vast amounts of pollution can enter federal waters. Either new jurisdictional test would require judicial assessment of an area that is within the expertise of the Corps and EPA, with little, if any, predictability. Thus, if federal regulations do constitutionally extend to those waters that are connected to navigable waters - which has been settled law since Riverside Bayview - then any hydrological connection should suffice as far as the courts are concerned.118

In addition to being both judicially manageable and consistent with Congress's well-settled authority to regulate what actually enters the channels of commerce, the hydrological connection standard is actually quite a moderate use of the channels-of- commerce power. In a notable posl-Lopez channels-of-commerce case, National Association of Home Builders v. Babbitt,119 the D.C. Circuit held that the Endangered Species Act's prohibition against the "taking" of an endangered species - the Delhi Sands Flower- Loving Fly - was a valid exercise of Congress's channels-of- commerce authority.120 The court reasoned that for the taking clause to be preserved, it must be extended to prevent "interstate actors" - in that case construction materials and builders moving across state lines - from destroying the endangered fly's habitat through their use of the channels of commerce in building a hospital.121

By comparison, the case for federal regulation of hydrologically connected waters is a much easier one to make under the channels-of- commerce power. This is because navigable waters are themselves channels of commerce over which there is clear federal jurisdiction. Thus, the extension of Lopez category one powers to cover hydrologically connected waters that the Supreme Court has found to be "inseparably bound up"122 with navigable waters, which actually are channels of commerce, is quite moderate in light of existing postLopez case law in this area.123

III. STRUCTURAL FEDERALISM CONCERNS IN THE WATER POLLUTION CONTROL ARENA

This Part argues that the hydrological connection test comports with principles of federalism that have underscored the Supreme Court's recent Commerce Clause jurisprudence.124 The need for limiting federal powers is not a new notion; Justice Cardozo once wrote that the judicial inquiry is to distinguish "what is national and what is local in the activities of commerce."125 Thus, one job of the judiciary in Commerce Clause cases is to protect what is properly the job of the states from federal intrusion.126 Moreover, the SWANCC Court's use of the clear statement rule to protect this structural federalism concern127 mandates that any complete analysis of the constitutional scope of federal powers to regulate water pollution consider the limitations imposed by that concern. As noted, the navigable waters doctrine historically respects this important concern.128 This Part, however, goesbeyond the historical rationale and asserts that federal regulation of water pollution under the expansive navigable waters doctrine argued for here does not "effectually obliterate the distinction between what is national and what is local and create a completely centralized government."129

Two considerations are paramount to the structural federalism analysis. First, the most prevalent concern in the modern jurisprudence is that some areas of regulation must be left solely up to the states to regulate.130 The second consideration is whether water pollution is an aspect of interstate commerce that states cannot effectively manage without federal policy. Section III.A argues that water pollution regulations are an essential part of national environmental policy, which the Supreme Court has deemed distinct from the traditional state power over land use. Section III.B argues that states cannot regulate pollution of navigable waters without disturbing the policies of neighboring states, thus making it a proper use of Congress's Commerce Clause authority to impose national water pollution control standards.

A. Water Pollution Regulations Are Properly Considered Environmental Laws as Distinct from Land Use Regulations

The main federalism concern in both Lopez and SWANCC is that traditional areas of state control must not be encroached upon by federal regulation.131 In Lopez, that concern was the basis for the nullification of the Gun-Free School Zones Act, and in SWANCC, it was the basis for the Court's narrow construction of the CWA. In this way, SWANCC echoed what critics of federal wetland enforcement have long argued: that federal water pollution laws encroach on land use requirements, "perhaps the quintessential state activity."132 However, the Supreme Court has distinguished the two as separate types of laws.

The argument that environmental protection measures are land use requirements has been addressed and squarely rejected by the Supreme Court in California Coastal Commission v. Granite Rock Co.133 Central to the Court's analysis was whether a California environmental law amounted to an illegitimate land use regulation on federal property. The Court held that the California law is an environmental regulation that does not determine the basic uses of the federal land.134 The Court distinguished between land use and environmental regulations on the ground that "[l]and use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits."135 Drawing such a distinction is not necessarily obvious, as the "line between environmental regulation and land use planning will not always be bright."136 The Court, however, deferred to Congress's indication of "its understanding of land use planning and environmental regulation as distinct activities."137

The Court's recognition of environmental laws as distinct from land use laws - even where there is some overlap between the two - alleviates the concern underlying Lopez and Morrison about federal infringement of states' rights.138 Thus, the Court should, by its own rationale, be far less concerned about opening the flood gates to myriad federal police powers by upholding federal water regulations than, for example, by upholding federal criminal statutes.

The SWANCC Court carefully avoided this analysis, however. In employing the clear statement rule, the Court indicated only that the substantial effects-based jurisdiction argued for by the Corps would raise the difficult constitutional question of encroachment into the area of land use, not that the substantial effects analysis would invariably preclude federal jurisdiction on that ground.139 The Court specifically declined to evaluate whether or not federal jurisdiction over isolated wetlands would amount to an unconstitutional encroachment upon the traditional state power over land use.140 In fact, such federal jurisdiction would not, in light of California Coastal, be a federal land use regulation.

Moreover, denying federal jurisdiction under the federalism rationale would require characterizing wetlands as "lands" rather than "waters." But as the dissent in SWANCC pointed out, the Court has already spoken on that issue, holding in no uncertain terms in Riverside Bayview that wetlands are "waters of the United States."141 Thus, denying federal jurisdiction over hydrologically connected wetlands on the basis of a federal usurpation of the state power to regulate land use would be contrary to both California Coastal and Riverside Bayview.142

In addition to the precedent that should guide the constitutional analysis, the approach to federalism taken by the California Coastal Court is illuminating for its focus on broad sectors of social regulation, specifically environmental policy and land use policy. The Court did not seek to draw a line within these broad sectors demarcating the point at which federal jurisdiction ends and state authority begins. Such an approach is often advocated in the context of water pollution control,143 but always misses the point. Federalism concerns have not typically sought to determine which bodies of water only the states get to regulate and which the federal authorities get to regulate. Rather, the federalism concern is primarily about whether there is federal encroachment into an entire area that has been traditionally left to the states, such as crime, education or family law.144 The long history of federal control over the nation's navigable waters145 illustrates that this is not such an area of law.

B. The First Principles of Interstate Commerce Clause Jurisprudence Support Federal Regulation of Water Pollution

Limiting federal authority to navigable-in-fact waters and their directly adjacent wetlands would undermine the rationale behind the Interstate Commerce Clause itself. The "first principles" of federal regulation of interstate commerce endorse the notion that federal control should extend to areas where the states may interfere with each other's efforts.146 Indeed, Lopez cited language in Gibbons indicating that only internal commerce which "does not extend to or affect other States" is beyond the reach of federal powers over commerce.147 The long standing rationale for federal water pollution control is based on this very principle of "subsidiarity," which dictates that federal control is necessary where the states cannot effectively regulate themselves.148 In fact, the transboundary nature of water pollution poses the identical problem that gave rise to the need for an exclusive federal power over interstate commerce in the first place. Water pollution can be transferred from one state to another, because states often share the same river, lake or other hydrological connection with other states' waters.149 Thus, even states with strong water pollution control standards would suffer from water pollution because of weak standards in neighboring states.

Prior to the enactment of a federal water pollution statute, the problem of ineffective state control led to the very "animosity and discord" between states that Hamilton intended national standards to prevent.150 In 1906, a water pollution dispute led to litigation between the States of Missouri and Illinois. In Missouri v. Illinois,151 Missouri charged that Illinois's dumping of Chicago's sewage flowed via Illinois waters into the Mississippi River, causing a nuisance for the residents of St. Louis - notably, an increased incidence of typhoid.152 When Chicago began dumping its sewage into a canal and down the Mississippi, its incidence of typhoid fell sharply from more than eighty cases per 100,000 to fewer than ten per 100,000.153 Thus, Illinois effectively sent Missouri its typhoid problem via transboundary water pollution.

Despite the demonstrated inability of states to regulate water pollution so as not to interfere with each other, a noted "environmental federalist," Jonathan Adler, has argued that states can more effectively regulate wetlands than the federal government.154 Even Adler, however, acknowledges that the constitutional limits to federal authority would not prevent regulation of activities that result in the pollution of a navigable waterway.155

Because of the transboundary nature of water pollution, it affects more than one state.156 As Missouri v. Illinois illustrates, water pollution is a classic element of commerce between states that frequently cannot be managed effectively without national controls.157 Thus, the original subsidiarity rationale for federal power over commerce justifies federal regulation in this area. Finally, the hydrological connection test - because a navigable-in- fact waterway must be involved - ensures that federal water pollution law is not expanded beyond a point which the subsidiarity rationale can support.

IV. ECONOMIC OR NONECONOMIC: POTENTIAL REGULATION OF WATER POLLUTION UNDER THE SUBSTANTIAL EFFECTS DOCTRINE WOULD SATISFY THE LOPEZ STANDARD

Lopez revived the historic federalism tenets of Commerce Clause jurisprudence, and cast doubt over the constitutional foundation of environmental laws.158 Nevertheless, this Part argues that potential federal regulation of isolated, intrastate wetlands would satisfy the Lopez substantial effects analysis.159 Four factors make up the analysis: whether the activity being regulated is economic; whether the law at issue contains a "jurisdictional element" that courts can use on a case-by-case basis to determine the effect on interstate commerce; the presence of Congressional findings should the effect on interstate commerce not be "visible to the naked eye"; and, finally, the degree of attenuation between the actual regulated activity and the effect on interstate commerce.160

The economic/noneconomic distinction seemsto be the only "make- or-break" element,161 and the primary basis for the outcomes of Lopez162 and Morrison.163 Section IV.A argues that wetland regulation almost always involves economic activity. Whether the reasoning employed in determining the regulated activity's connection to interstate commerce is "attenuated" is also an important element because it seeks to limit the activities within the federal government's reach to those that are truly part of interstate commerce, thus denying the federal government a general police power, a role reserved for the states.164 Section IV.B argues that making the link between the economic activity affecting wetlands and interstate commerce does not require attenuated reasoning. Congressional findings165 and the presence of a jurisdictional element166 are not dispositive elements, and thus are not the focus of this analysis.

It is worthwhile here to reiterate that as far as the Supreme Court is concerned, Congress has not yet passed any legislation regulating water pollution that should be analyzed under this framework.167 Thus, the following analysis determines the proper constitutional limits to potential federal water pollution regulation over non-hydrologically connected waters.168 The emphasis of any such new legislation will undoubtedly be on the regulation of isolated wetlands.169

A. Wetland Protections Regulate Economic Activity

Within the substantial effects analysis, the most significant consideration regarding Congress's power to invoke the aggregation principle to regulate wholly intrastate activities is whether the regulated activity is economic, or commercial, in nature.170 As SWANCC noted, almost any application of such legislation could only be upheld under the aggregation principle,171 which permits federal laws to reach minor individual instances of conduct based on the aggregate effect of like instances on interstate commerce, thus meeting the substantial effects test.172 For a court to consider the aggregate effects of the regulated activity on interstate commerce, that activity almost certainly must be economic in nature.173

The Supreme Court in Hodel v. Virginia Surface Mining and Reclamation Association, Inc.174 upheld federal water and land quality protection measures because the regulated activity was economic in nature. Hodel involved a Commerce Clause challenge to the Surface Mining Control and Reclamation Act. The Act was designed to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations,"175 and specifically required that the mining land and affected water be restored to its natural condition.176

The Supreme Court rejected the Commerce Clause challenge and the claim that the Act regulated land use, an activity traditionally left to the states.177 The Court's rationale was that Congress may clearly regulate the conditions under which goods are shipped where the local activity of producing the goods affects interstate commerce.178 The limited judicial scrutiny applied in Hodel indicated that Congress had nearly plenary power to enact environmental laws, irrespective of whether the laws infringed on traditional state functions.179

Although Lopez provides a more structured framework for evaluating the constitutionality of substantial effects-based regulations, it does not require more than rational basis scrutiny and does not preclude consideration of past Commerce Clause cases, including Hodel.180 The Lopez Court specifically cited Hodel as an example of a case that upheld regulation of "intrastate economic activity."181 Despite the Lopez Court's characterization of Hodel as a case of pure economic regulation, Hodel involved more than this. Hodel held that Congress has the power under the Commerce Clause to legislate to protect land and water resources from the effects of a particular economic activity - surface mining. Thus, even in Lopez there is a hint that the Court considers environmental regulations to be an aspect of the regulation of economic activities.182

Water pollution almost always results from activity similarly commercial to surface mining, namely: chemical dumping, development of housing structures, shopping malls, parking lots, even sports stadiums.183 Like the Hodel regulations, the CWA's permit requirement almost always applies to commercial projects. However, as it is currently written, the CWA prevents the discharge of pollutants into wetlands associated with any activity and for any reason.184 Thus, one difference between water pollution regulations and the environmental performance requirements in Hodel is that the latter only restricted the discharge of pollutants resulting from surface mining activities, which are plainly economic in nature.185 Current CWA-based water pollution regulations apply, at least superficially, to economic and noneconomic activity, the latter of which Lopez and Morrison inveigh against regulating.

This feature of the CWA has inspired criticisms focusing on the alleged noneconomic nature of wetland regulation.186 Adler, for instance, noted that the filling of wetlands is not "inherently economic or commercial in nature," pointing to such examples as expanding one's home,187 or even walking or riding a bicycle through a wetland.188 Further, the argument goes, it is not the wetland's "value" in either an economic or ecological sense that makes regulating it constitutional. It is the "connection to interstate commerce,"189 which is just as non-existent in the case of backyard wetlands as in the case of guns in school zones.190

As an initial matter, the insignificance of the noneconomic impacts on wetlands means that the CWA could simply be limited to economic activity without losing much, if any, protective force.191 Second, notwithstanding the remote possibility of federal regulation of walking through wetlands on a Sunday afternoon stroll, filling wetlands is far more economic than the criminal activities at issue in Lopez and Morrison. Filling wetlands with fill material and other pollutants is typically done by commercial actors for a commercial profit.192

Post-Lopez cases have recognized, just as Hodel did, that where economic activity produces environmental harms, the environmental regulation constitutes an inseparable part of the regulation of the economic activity.193 Moreover, these cases have addressed and rejected arguments emphasizing the mere theoretical possibility that minor noncommercial activity, such as walking through a protected wetland, can violate the regulation and hence prove the noneconomic nature of the regulated activity.194 Such illustrations do not undermine the efficacy of a complex set of regulations designed primarily to regulate commercial activity so as to minimize the environmental consequences of it.195 Thus, launching a constitutional attack on water pollution regulations based on unrealistic illustrations is not a critique that will influence the developing jurisprudence. Wetland protection regulations focus on commercial activity and should be sustained for that reason.

An example of sustaining environmental regulations on the basis of their focus on economic activity is the Fifth Circuit's recent decision in United States v. Ho.196 The Ho court deemed asbestos removal to be "very much a commercial activity" in today's economy because of its connection to commercial purposes such as building renovation or demolition for land use.197 Wetland regulations are substantially the same as asbestos removal safeguards in this regard: they both regulate activity that is a necessary precursor to commercial development.198

In Lopez and Morrison, the issue was clear: gun possession and gender- motivated violence were "in no sense" economic activities.199 The same can hardly be said of wetlands regulation. Indeed, one is hard pressed to imagine the need for such regulations without the presence of a large, national commercial development market, and other significant economic activities.200 However, the economic nature of wetland regulation also illustrates that should the Court reverse course and demand the kind of precision in each and every regulation that avoids even theoretical misuses of the commerce power, the CWA and its regulations could - if extended to isolated wetlands - be re-written to reach only economic activity without losing any force.

B. Upholding Federal Wetland Regulations Does Not Require Attenuated Reasoning

The substantial effects analysis does not permit attenuated reasoning in demonstrating a connection between the regulated activity and interstate commerce.201 The purpose this element serves is to disallow limitless arguments that could justify federal control of nearly any activity. Because wetland destruction is typically a consequence of commercial development projects, this element of the Lopez analysis does not appear to stifle regulation of isolated wetlands.202 As long as the activity that pollutes or degrades the wetland is commercial, the imagination need not strain itself in order to conclude that a federal permitting requirement is part of a larger economic scheme relating to industrial or commercial uses of water resources.

For instance, the Ho court found, "most importantly," that the relationship between asbestos removal and interstate commerce was "direct and apparent."203 The court found rational Congress's recognition of a national asbestos market and Ho's activities' injuries to it.204 Specifically, Ho gained a commercial advantage on licensed asbestos abatement companies by ignoring the cost-imposing federal standards.205 Moreover, the court noted that "the presence of a national market in the regulated activity also serves as a limiting principle"206 in the sense that activities unrelated to a national commercial market would not be reached under the regulations.

While it could be argued, just as Adler has in the \case of wetland regulations,207 that the asbestos requirements at issue in Ho are too far removed from interstate commerce because of the potential that a private home owner would have to comply when expanding his or her house,208 the presence of a national market and the directly intertwined nature of the regulations with what is usually commercial activity was enough to uphold the federal regulations, just as these elements are enough to justify federal wetland pollution control measures.

CONCLUSION

Many have argued that SWANCC substantially restricted previously expansive federal jurisdiction under the Commerce Clause. In fact, SWANCC was not such a case. Rather, SWANCCs impact will, taken with Lopez, be to contribute to a more structured constitutional framework of water pollution laws, and the analysis employed by courts charged with reviewing them. Specifically, SWANCCs use of the clear statement rule indicates the soundness of the navigable waters doctrine as a constitutional principle. Taken with Lopez's affirmation of Congress's plenary power over the channels of commerce, the navigation power supports jurisdiction over any wetland that is hydrologically connected to a navigable body of water. SWANCCs use of the clear statement rule to avoid a substantial effects analysis of wetland regulation also indicates that Congress has not yet exercised its substantial effects authority in this area. Thus, isolated, intrastate wetlands are beyond the reach of federal jurisdiction under the CWA as it is currently written. However, because wetland protections typically regulate economic activity, Congress can through a clear use of its substantial effects power properly enact legislation aimed at protecting isolated, intrastate wetlands.

Although some may prefer no federal regulation over isolated wetlands as a matter of policy, the Constitution is more permissive, especially in light of the lack of a competing traditional state function.209 Water pollution control has developed into an important national concern, and it will only become more critical to the nation's welfare as time passes and water resources become ever scarcer. A federal water protection regime can, on a sound constitutional basis, seek to protect the nation's waters from commercial pollution.

Copyright Michigan Law Review Association Aug 2005

Source: Michigan Law Review

More News in this Category