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Does that Line in the Sand Include Wetlands? Congressional Power and Environmental Protection

January 2000

Citation: 30 ELR 10894

Issue: 1

Author: Philip Weinberg

The U.S. Supreme Court's recent campaign to curtail congressional authority to legislate under the U.S. Commerce Clause1 has inevitably fostered speculation about the validity of parts of the Clean Water Act (CWA),2 the Endangered Species Act (ESA)3 and other federal environmental laws—heightened by the Court's recent decision to hear just such a claim.4 One view is that the decisions since United States v. Lopez,5 invalidating the Gun-Free School Zones Act,6 have lit a fuse that will surely destroy congressional power to regulate wetlands, the habitat of endangered animals and other terrain formerly taken for granted.7 A contrary viewpoint is that Lopez and its progeny were aberrations, incorrectly decided and soon to be so viewed by the Court itself.8 In my view these decisions were correct, and the Court did well to restrict the ability of Congress to ignore the limits the U.S. Constitution places on it—but the environmental statutes are on firmer ground (even those protecting wetlands) and are not in jeopardy.

Let us start with a look at this series of current decisions, together with lower court holdings examining the validity of federal environmental statutes in the wake of Lopez. Then let us predict how the Court will deal with an assault on the CWA, such as the case in which the Court recently granted certiorari, or the ESA. Finally, we should briefly explore the related issue of states' immunity from the federal environmental laws under recent Court holdings.

Philip Weinberg teaches Environmental Law and Constitutional Law at St. John's University School of Law. He has written several texts, a casebook and numerous articles. A Columbia Law School (1958) graduate, he formerly headed the New York Attorney General's Environmental Protection Bureau. The author is indebted to Darren Mogil (St. John's Law School 2001) for research assistance in preparing this Dialogue.

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