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The Curious Flight of the Migratory Bird Rule

September 2001

Citation: 31 ELR 11079

Issue: 9

Author: Michael J. Gerhardt

Few, if any, issues have divided environmental lawyers more than the legitimacy of the Migratory Bird Rule (Rule).1 Ever since its adoption in 1986 by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) as an assertion of federal authority over isolated wetlands,2 ostensibly for the sake of protecting migratory birds, the Rule had come to symbolize for some all that was wrong with either modern U.S. Commerce Clause jurisprudence or federal regulators' efforts to expand their environmental authority3 and for others the inevitable but natural recognition of the complexity of our ecosystem.4 When the U.S. Supreme Court last year agreed to grant certiorari in a case challenging the Rule,5 both sides were anxious about whether the occasion had finally arrived to resolve their long-standing division.6 When earlier this year the Court overturned the Rule on statutory grounds, both sides greeted the outcome with uncertainty. Since the majority avoided deciding any constitutional issue, overturned no cases, announced (at least explicitly) no new rules or standards, and arguably left some room open for federal protection of migratory birds, the opponents of the Rule could not be sure of the extent of their victory, while the proponents of the Rule were unsure of the magnitude of their loss. A close reading of the decision and federal and state responses to it suggest both sides are right to be ambivalent about the decision: it is neither a complete victory for the opponents of the Rule, nor a complete loss for the Rule's proponents.

In this Article, I examine the implications of the Supreme Court's decision overturning the Rule for wetlands regulation. After reviewing the majority and dissenting opinions in SWANCC, I turn to a closer examination of the decision's implications for constitutional and administrative law, particularly wetlands regulation. In the final part, I examine the significance of federal and state responses to the Court's overturning of the controversial Rule.7 I conclude that the efforts of federal and state authorities to fill the void left as a result of invalidating the Rule reflect the decision's broader significance, especially as a catalyst to spur federal and state authorities to re-commit themselves to the protection of migratory birds.

The author is the Arthur B. Hanson Professor of Law at William & Mary Law School. This Article is a shortened version of both a longer article forthcoming in the Georgetown Law Journal and a speech given as the Keynote Address to the Environmental Law Institute/ALI-ABA's annual Conference on Wetlands Regulation, held in Washington, D.C., May 31, 2001. I am grateful to Paul Dame for excellent research assistance.