After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?
By J. Blanding Holman, IV
INTRODUCTION
Not since the days of James Watt and the Sagebrush Rebellion has so much venom been directed towards the federal government and its efforts to manage and protect the nation's natural resources. Indeed, since the 1980's, anti-federal sentiment in America seems to have risen full-tide: the federal government has been assailed legislatively on Capitol Hill and physically attacked in Oklahoma City and elsewhere. United States v. Lopez, decided April 26, 1995, raises the question of whether the federal government will now suffer a wave of losses in the courthouse. Lopez is the first Supreme Court decision in almost sixty years to strike down a federal statute regulating private activity as being beyond Congress' legislative power under the Commerce Clause of the U.S. Constitution. This note argues that Lopez poses a considerable threat to portions of the Endangered Species Act (ESA) and the Clean Water Act (CWA), because these two federal environmental laws, as applied, lack a strong connection to interstate commerce.
Section nine of the ESA has been interpreted to prohibit activities on private land that modify the habitat of a listed species in such a way as to cause significant injury or actual death to the species. Arguably, this prohibition fails to regulate “commercial activity” and intrudes into land use regulation, which has traditionally been the concern of local authorities. Under the Lopez commerce power jurisprudence, this combination could well prove insufficient in interstate commerce terms. Similarly, the CWA has been interpreted to prohibit the degradation of isolated, periodic wetlands when such areas could serve as habitats for migratory birds. This migratory bird rule (derided by some as the “reasonable bird rule”) extends federal regulatory jurisdiction to wetlands that are not directly connected to other surface waters. The rule is premised on the idea that actions affecting migratory birds can be regulated under Congress' commerce power. Like the ESA habitat-modification prohibition, the CWA prohibition on habitat modification involves land use regulation, an area traditionally of local concern. Also, the CWA applies to individual wetlands filling activities that are not yet recognized as a “class” of actions substantially affecting interstate commerce. Lopez thus calls into question whether this extension of federal jurisdiction under the CWA bears a sufficient nexus to interstate commerce.
The scope of the Lopez decision remains indeterminate: Lopez may be restricted by its facts. The decision struck down the anomalous Gun-Free School Zones Act of 1990, which criminalized the possession of firearms within school areas. Because the subject matter regulated by the Act was not itself commercial and the law did not recite a connection to interstate commerce, Lopez may simply be an aberration. The language of the opinions, however, suggests another possibility. Lopez may signal a new era of substantive Commerce Clause jurisprudence in which courts examine the degree to which legislative subject matter “substantially affects” interstate commerce. This move away from “rational basis” scrutiny, whereby courts examine whether Congress could have rationally thought the legislative subject matter was related to interstate commerce, could pose serious challenges to certain conservation laws. Indeed, anti-federal activists have already heralded Lopez as a possible tool for striking down portions of the ESA and the CWA.
This note focuses on the potential impact of Lopez on those two environmental laws. Part II examines the evolution of Supreme Court Commerce Clause jurisprudence and the place of Lopez within that scheme. Part III examines the development of the commerce power relative to state and federal natural resources protection (particularly wildlife protection). Parts IV and V review the ESA and CWA respectively, with a focus on their Commerce Clause foundations and past courtroom assaults against them. Part VI applies the reasoning of the Lopez opinions to the ESA and the CWA and Part VII explores strategies for defending the ESA and CWA from Lopez challenges. The ESA's take-by-habitat-modification rule could probably withstand a Lopez-based assault if supporters on Capitol Hill and in federal agencies successfully clarify the significant economic value of species diversity; until they do so, the habitat-modification prohibition is at risk. Similarly, the CWA migratory bird rule may not withstand a post- Lopez attack, given its attenuated relation to interstate commerce, its intrusion into areas traditionally of local concern, and its blurring of the distinction between local and national concerns. However, regulators and legislators might successfully extend federal jurisdiction to isolated, periodic wetlands by demonstrating that such wetlands subtantially affect the quality of national waters, which are well within the federal government's commerce power.
Not since the days of James Watt and the Sagebrush Rebellion has so much venom been directed towards the federal government and its efforts to manage and protect the nation's natural resources. Indeed, since the 1980's, anti-federal sentiment in America seems to have risen full-tide: the federal government has been assailed legislatively on Capitol Hill and physically attacked in Oklahoma City and elsewhere. United States v. Lopez, decided April 26, 1995, raises the question of whether the federal government will now suffer a wave of losses in the courthouse. Lopez is the first Supreme Court decision in almost sixty years to strike down a federal statute regulating private activity as being beyond Congress' legislative power under the Commerce Clause of the U.S. Constitution. This note argues that Lopez poses a considerable threat to portions of the Endangered Species Act (ESA) and the Clean Water Act (CWA), because these two federal environmental laws, as applied, lack a strong connection to interstate commerce.
Section nine of the ESA has been interpreted to prohibit activities on private land that modify the habitat of a listed species in such a way as to cause significant injury or actual death to the species. Arguably, this prohibition fails to regulate “commercial activity” and intrudes into land use regulation, which has traditionally been the concern of local authorities. Under the Lopez commerce power jurisprudence, this combination could well prove insufficient in interstate commerce terms. Similarly, the CWA has been interpreted to prohibit the degradation of isolated, periodic wetlands when such areas could serve as habitats for migratory birds. This migratory bird rule (derided by some as the “reasonable bird rule”) extends federal regulatory jurisdiction to wetlands that are not directly connected to other surface waters. The rule is premised on the idea that actions affecting migratory birds can be regulated under Congress' commerce power. Like the ESA habitat-modification prohibition, the CWA prohibition on habitat modification involves land use regulation, an area traditionally of local concern. Also, the CWA applies to individual wetlands filling activities that are not yet recognized as a “class” of actions substantially affecting interstate commerce. Lopez thus calls into question whether this extension of federal jurisdiction under the CWA bears a sufficient nexus to interstate commerce.
The scope of the Lopez decision remains indeterminate: Lopez may be restricted by its facts. The decision struck down the anomalous Gun-Free School Zones Act of 1990, which criminalized the possession of firearms within school areas. Because the subject matter regulated by the Act was not itself commercial and the law did not recite a connection to interstate commerce, Lopez may simply be an aberration. The language of the opinions, however, suggests another possibility. Lopez may signal a new era of substantive Commerce Clause jurisprudence in which courts examine the degree to which legislative subject matter “substantially affects” interstate commerce. This move away from “rational basis” scrutiny, whereby courts examine whether Congress could have rationally thought the legislative subject matter was related to interstate commerce, could pose serious challenges to certain conservation laws. Indeed, anti-federal activists have already heralded Lopez as a possible tool for striking down portions of the ESA and the CWA.
This note focuses on the potential impact of Lopez on those two environmental laws. Part II examines the evolution of Supreme Court Commerce Clause jurisprudence and the place of Lopez within that scheme. Part III examines the development of the commerce power relative to state and federal natural resources protection (particularly wildlife protection). Parts IV and V review the ESA and CWA respectively, with a focus on their Commerce Clause foundations and past courtroom assaults against them. Part VI applies the reasoning of the Lopez opinions to the ESA and the CWA and Part VII explores strategies for defending the ESA and CWA from Lopez challenges. The ESA's take-by-habitat-modification rule could probably withstand a Lopez-based assault if supporters on Capitol Hill and in federal agencies successfully clarify the significant economic value of species diversity; until they do so, the habitat-modification prohibition is at risk. Similarly, the CWA migratory bird rule may not withstand a post- Lopez attack, given its attenuated relation to interstate commerce, its intrusion into areas traditionally of local concern, and its blurring of the distinction between local and national concerns. However, regulators and legislators might successfully extend federal jurisdiction to isolated, periodic wetlands by demonstrating that such wetlands subtantially affect the quality of national waters, which are well within the federal government's commerce power.
