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The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond

July 2001

Citation: ELR 10741

Author: William Funk

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)1 is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever. Second, the opinion by Chief Justice Rehnquist interpreting the Clean Water Act (CWA),2 joined by Justices O'Connor, Kennedy, Scalia, and Thomas, the same lineup that rendered the Court's decisions in United States v. Lopez3 and United States v. Morrison,4 may be said to engage in an exercise of statutory interpretation that displays an uncommon hostility to federal environmental regulation, a hostility betrayed by an interpretation that appears more the product of will than judgment. Third, the implications of the decision's statements regarding Congress' power under the Commerce Clause5 could be potentially staggering for environmental law. This Article will consider each of these claims.

William Funk is a Professor of Law at Lewis & Clark Law School. He received his B.A. from Harvard College and his J.D. from Columbia University. He thanks his colleague Michael Blumm for his helpful comments.