Wetlands and federal power

In 1995, the conservative wing of the US Supreme Court made history when it struck down by a 5-to-4 vote a federal law that criminalized possession of a gun near schools.

The controversial ruling marked the first time since the New Deal that a majority of justices blocked an attempt by the federal government to expand its power into a policy area traditionally reserved for the states.

Several decisions since have made clear that the landmark opinion five years ago was no aberration.

Today, the court takes up an environmental case that offers the conservative wing an opportunity to further reshape America's constitutional landscape. One of the most important cases of the year, it will more sharply define Congress's authority under the Constitution's Commerce Clause to pass a broad range of legislation, analysts say.

At issue is whether the federal Clean Water Act applies to isolated wetlands that have no connection to major rivers or drainage systems flowing from state to state.

If the answer is yes, it could mark a dramatic expansion of federal power over virtually all land-use decisions. If no, it could open up large tracts of environmentally sensitive wetlands for unregulated development.

That is a prospect that concerns many environmentalists. "Unfortunately, there will perhaps be many states that will not move to protect these isolated wetland areas, because in those particular states the development lobby is much stronger than the environmental and natural-resources lobby," says Derb Carter, a North Carolina lawyer who specializes in wetlands law at the Southern Environmental Law Center.

At the core of the dispute is a fundamental disagreement among the justices over whether the high court should defer to the kind of unrestrained, expansive federal jurisdiction that Congress and the executive branch have favored since 1937. Or whether it should assume a more aggressive role as a kind of constitutional cop, invalidating national efforts that violate the federal-state power balance as conceived by the Founding Fathers.

A coalition of environmental and civil rights groups is warning that hard-fought federal rights and protections could be swept away if the court again votes to restrict federal power. On the other side, conservative legal groups, developers, and landowners are urging the court to uphold the constitutional concept of a government of limited powers.

The case, Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers, involves a dispute over whether the federal government has the power to block construction of a garbage dump outside Chicago because the planned site - an abandoned strip mine - provides important habitat for migratory birds.

The Corps of Engineers blocked the project after determining the Clean Water Act gave it authority over the isolated lakes and ponds that were to be filled in to make room for the landfill.

Lawyers representing 23 Illinois municipalities seeking to build the landfill sued the Corps of Engineers. The suit said that federal jurisdiction only covers waters that extend from state to state, not isolated lakes and ponds unconnected to major interstate river systems.

The corps countered that the ponds and lakes were under federal jurisdiction because they provided habitat for migratory birds, which fly from state to state. The issue of interstate connection is important because the Constitution under the so-called Commerce Clause limits Congress to passing laws regulating activities that substantially affect interstate commerce.

Both a federal judge and a federal appeals court panel in Chicago ruled that the isolated wetlands were covered by federal jurisdiction. The appeals court reasoned that the loss of migratory-bird habitat would amount to a substantial impact on national commerce because "approximately 3.1 million Americans spent $1.3 billion to hunt migratory birds in 1996, and that about 11 percent of them traveled across state lines to do so." The decision adds that 17.7 million birdwatchers traveled across state lines to observe birds.

"We find that the destruction of migratory-bird habitat and the attendant decrease in the populations of these birds 'substantially affects' interstate commerce," writes Judge Diane Wood for the appeals panel. "The effect may not be observable as each isolated pond used by the birds for feeding, nesting, and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires."

Lawyers for the solid-waste agency are urging the high court to reject this reasoning. "Under the Corps' interpretation of the [Clean Water Act], its regulatory authority stretches to virtually every body of water in the country - including seasonally wet areas in homeowners' backyards - because virtually any water body is or could be used as a feeding or resting place by some of the 5 billion birds that migrate over the continental United States each year," writes Timothy Bishop in his brief to the court. "The Corps' rationale would justify federal regulation not just of all waters but of virtually all human activity."

Lawyers for several environmental groups disagree. They say a narrower interpretation of the Clean Water Act would invalidate "much of the current federal regulation of water pollution," writes Louis Cohen in a friend-of-the-court brief filed on behalf of Environmental Defense and five other groups. "Millions of acres of 'isolated' surface waters and wetlands throughout the nation would be removed from federal protection."

(c) Copyright 2000. The Christian Science Publishing Society