The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment

John P. Dwyer

Editors' Summary: In United States v. Lopez, the U.S. Supreme Court for the first time in 62 years struck down a federal statute on grounds that it violated the Commerce Clause of the U.S. Constitution. The Gun-Free School Zones Act of 1990 was unconstitutional because it intruded into an area of traditional state concern and did not regulate a commercial activity, either directly or as part of a pervasive regulatory scheme. Although United States v. Lopez involved only a discreet, isolated federal statute, the case may well have significant reverberations throughout all areas of federal law, including environmental law. The author examines in detail the majority, concurring, and dissenting opinions in the case, and then analyzes how the case is likely to affect federal environmental legislation. He concludes that while United States v. Lopez may signal judicial readiness to apply stricter scrutiny to federal legislation, most federal environmental laws — with their close ties to commerce — should still survive constitutional challenges.

John P. Dwyer is a Professor of Law at Boalt Hall School of Law, University of California, Berkeley, where he teaches environmental law and policy, environmental enforcement, energy law and policy, and real property. His scholarship covers legislative process, risk assessment, economic incentives for pollution control, and federalism. His most recent book is JOHN P. DWYER & MARIKA F. BERGSUND, FEDERAL ENVIRONMENTAL LAWS ANNOTATED (1995), from Shepard's/McGraw-Hill. Professor Dwyer received his B.A. from DePauw University in 1973, his Ph.D. in chemistry from the California Institute of Technology in 1978, and his J.D. from Boalt in 1980, where he was Editor-in-Chief of the ECOLOGY LAW QUARTERLY, Professor Dwyer also clerked for Sandra Day O'Connor and worked as a staff attorney in the Public Defender Service in Washington, D.C.

[25 ELR 10421]

The most startling case of the 1994 U.S. Supreme Court term was United States v. Lopez.¹ In Lopez, the Court struck down a federal criminal statute barring firearms on or near schools on the ground that it exceeded Congress' authority under the Commerce Clause of the U.S. Constitution.² Although the case involved no federal environmental statutes or regulations, the majority opinion, laden with paeans to federalism, may portend greater judicial scrutiny of federal environmental statutes regulating intrastate activities.

Lopez reaffirmed much of the basic Commerce Clause doctrine developed in the last 60 years; however, it also added new criteria to determine whether an intrastate activity "substantially affects interstate commerce" and thus may be regulated under Congress' Commerce Clause power. Regulation of intrastate activities that are noncommercial or that traditionally are subject to state control — criteria that Lopez did not carefully define — will be subject to greater judicial scrutiny. But even with Lopez's elaboration of established standards, most environmental statutes will continue to survive constitutional challenge. Conceivably a few statutes, such as the Endangered Species Act (ESA)³ and the Safe Drinking Water Act (SDWA),⁴ may now be vulnerable to a Commerce Clause challenge. Resolution of that question, however, must await further doctrinal clarification of some of the analysis in Lopez as well as an adequate record elucidating the relationship between interstate commerce and the intrastate activities those acts regulate.

The Case

Alphonso Lopez, a 12th-grade student at a San Antonio high school, took a concealed .38 caliber handgun and five bullets into his school. Acting on a tip, authorities arrested Mr. Lopez and eventually charged him under the Gun-Free School Zones Act of 1990⁵ with knowing possession of a firearm in a school zone.⁶ Mr. Lopez was convicted after the District Court rejected his claim that the federal statute exceeded Congress' authority under the Commerce Clause.

The Fifth Circuit, however, agreed with Mr. Lopez on his Commerce Clause claim and reversed his conviction.⁷ The Supreme Court granted certiorari, and lawyers and scholars confidently predicted that the Court would reinstate the conviction. After all, the Court had not struck down a federal statute regulating private activity under the Commerce [25 ELR 10422] Clause since 1936,⁸ and the holding in that case had long since been discredited.⁹

The legal question for the Lopez Court was the proper interpretation of six words in the Commerce Clause, which authorizes Congress to "regulate Commerce . . . among the several States."¹⁰ The superficial simplicity of this task, however, masked a deep divide among the justices over the proper allocation of political authority between the state and federal governments and over the Court's role in making or preserving that allocation. Chief Justice Rehnquist wrote the opinion for the five-member majority. Justice Kennedy (joined by Justice O'Connor) and Justice Thomas, all of whom voted with the majority, wrote separate concurring opinions. Justices Stevens and Souter wrote separate dissents, and Justice Breyer wrote a dissent that Justices Stevens, Souter, and Ginsburg joined.

The Majority Opinion and Concurrences

Concerns that expanding congressional power was eroding the federalist structure of the U.S. political system drove the Chief Justice's opinion for the majority. The Constitution, he noted, grants Congress limited, enumerated powers; the resulting division of political authority between the states and the federal governments (along with the separation of powers) is designed to prevent concentrations of power and thereby protect fundamental liberties.¹¹ The federal firearm statute, however, upset the balance of political power in two respects. First, because the statute did not, in the majority's view, involve commerce, it expanded congressional power well beyond the limited delegation established in the Constitution. Second, it intruded into traditional preserves of state authority — education and criminal law — thereby undermining state autonomy in these areas.

The majority opinion surveyed Commerce Clause doctrine from two distinct periods. Before 1937, when the Court was relatively hostile to state and federal economic and labor regulation, the Court had struggled to give precise and narrow meaning to "commerce," and in the process had created formalistic categories of activities that were subject to or excluded from federal regulation. In one set of cases, the Court distinguished "commerce" from "manufacturing," "production," and "mining";¹² the Court viewed commerce as interstate trade, and economic activities falling outside that limited definition were viewed as intrastate operations subject only to state regulation. In other cases, the Court tried to distinguish activities that had "direct" and "indirect" effects on interstate commerce;¹³ only the former were subject to federal regulation under the authority of the Commerce Clause. In retrospect, the categorical distinctions in these cases were too brittle, too unrelated to practical economic conditions, to provide lasting constitutional guidance.

All of this changed in 1937 with National Labor Relations Board v. Jones & Laughlin Steel Corp.¹⁴ The case is famous in American history because in it the Court retreated from its anti-New Deal holdings in the face of mounting political pressure.¹⁵ The case is doctrinally important because it was the first of a series of cases that reinterpreted the Commerce Clause to give Congress much greater freedom to regulate what had become a national, integrated economy. Beginning with Jones & Laughlin Steel, the Court held that Congress could regulate private intrastate activities having a substantial impact on interstate commerce.¹⁶ The Court soon dispensed with distinctions between commerce and other forms of economic activity, and it abandoned the distinction between direct and indirect effects on interstate commerce.¹⁷ Perhaps more important, the Court's post-1937 cases established a rational basis standard of review that required the federal courts to defer in most instances to Congress' judgment as to whether an intrastate activity substantially affects interstate commerce.¹⁸ The Court's vigorous resistance to federal economic regulation was over.

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Not surprisingly, the pre- and post-1937 cases also differed in the emphasis they placed on federalism. The pre-1937 cases constantly asserted that limits on Commerce Clause authority were necessary to preserve the federalist structure. In A.L.A. Schechter Poultry Corp. v. United States, for example, the Court declared that the Commerce Clause must be narrowly construed; otherwise, "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government."¹⁹ While the Court in Jones & Laughlin Steel also cautioned that the Commerce Clause should not be read to "obliterate the distinction between what is national and what is local and create a completely centralized government,"²⁰ subsequent Commerce Clause cases barely mentioned the issue, if at all.

The Lopez majority did not repudiate any of the post-1937 decisions; indeed, Lopez cited and discussed those cases with approval, and the Court seemed to reaffirm its holdings in cases where the intrastate activity's relation to interstate commerce was quite modest. Wickard v. Filburn,²¹ for example, rejected a Commerce Clause challenge to a federal statute that regulated the amount of crops that could be grown, even if grown solely for home consumption. Although the wheat grown and consumed on Mr. Filburn's 23-acre plot could not have affected interstate commerce much, the Court held that the cumulative effects of home consumption nationally may well have affected the price of wheat in interstate commerce.²²

The Lopez majority, however, found Wickard and other post-1937 cases distinguishable because neither the 1990 firearm statute nor Mr. Lopez's possession of a gun in a school zone was related to interstate commerce either in general or as specifically applied to Mr. Lopez. First, § 922(q) of the Gun-Free School Zones Act of 1990 is a criminal statute that

has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.²³

Second, the majority observed that § 922(q) does not contain a jurisdictional provision that would require a case-by-case determination of whether the possession of a handgun in a school zone substantially affects interstate commerce.²⁴ Thus, even if the statute did not broadly deal with interstate commerce, the Court might have upheld it if it were specifically limited to instances of interstate commerce.

The Court was also troubled because the federal act intruded into areas traditionally subject to state regulation, namely, criminal law and education. In a footnote, the Court quoted earlier cases declaring that the states have primary responsibility for enforcing criminal laws and asserted that the enactment of federal criminal statutes changes "the sensitive relation between federal and state criminal jurisdiction."²⁵ Later in the opinion, when discussing the government's arguments, the majority expressed concern that Congress would expand its reach to family law and "areas such as criminal law enforcement or education where States historically have been sovereign."²⁶ The opinion thus hinted that the Court will scrutinize more carefully federal regulation of substantive areas that are traditional state concerns.

The majority rejected the government's argument that the impacts of violent crime — with its burden on the national economy and its deleterious impact on education and the productivity of citizens — constituted a substantial impact on interstate commerce. Under the first rationale, "Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce,"²⁷ and under the second rationale,

Congress could regulate any activity that it found was related to the economic productivity of individual citizens [including family law, criminal law and education]. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.²⁸

The majority also rejected Justice Breyer's dissenting argument that the presence of guns in schools had an adverse effect on learning that in turn had substantial effects on interstate commerce. The majority maintained that this argument — that Congress can regulate activities that affect the learning environment — would permit direct federal regulation of school curricula and other matters of strictly local concern.²⁹ "Justice Breyer's rationale lacks any real limits because, depending on the level of generality, any [25 ELR 10424] activity can be looked on as commercial."³⁰ The majority's opinion thus echoed the pre-1937 decisions in their determination to ensure that the Commerce Clause power did not become a general police power at the expense of state autonomy and federalism.

Justice Kennedy, joined by Justice O'Connor, wrote a concurring opinion.³¹ Although they joined Justice Rehnquist's majority opinion, both the language and the tone of the concurrence suggest that they have some reservations about the direction that Lopez may be charting. Justice O'Connor has been one of the strongest advocates for the states in Tenth Amendment cases; however, the concurring opinion indicates that she and Justice Kennedy remain the swing votes in Commerce Clause cases.

Justice Kennedy readily acknowledged the difficulty the Court had had in establishing standards of judicial review in Commerce Clause cases that would remain vital in the face of changing technology and an evolving national economy.³² He also confirmed the continuing validity of the post-1937 cases, which repudiated formal definitions of commerce and adopted a deferential standard of judicial review.³³ He emphasized the importance of stability in Commerce Clause doctrine:

the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. . . . [I]t also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.³⁴

Quoting Justice O'Connor's majority opinion in New York v. United States, he wrote:

This [federalist] framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers . . . because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role.³⁵

Justice Kennedy's opinion thus seemed to signal his agreement with Justice Souter's dissenting opinion that Lopez is "hardly an epochal case."³⁶

Justice Kennedy then turned to the Court's role under the Commerce Clause. He repeated the widely held view that federalism protects individual liberty by diffusing power,³⁷ but recognized that the benefits of federalism did not imply any need for judicial review. "To be sure, one conclusion that could be drawn from The Federalist Papers is that the balance between national and state power is entrusted in its entirety to the political process."³⁸ This view — that federalism, unlike individual rights, will not unduly suffer at the hands of Congress — was championed by academics who argued that states were adequately represented in national politics.³⁹ With little discussion, however, Justice Kennedy concluded that there were no structural protections for federalsim and that some judicial review was necessary; in his words, the Court had a "duty to recognize meaningful limits on the commerce power of Congress."⁴⁰

Justice Kennedy's analysis of the federal firearm statute began with the observation that "neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus."⁴¹ That the regulated conduct "has an ultimate commercial origin or consequence" was not enough to uphold the statute, especially where it "intrude[s] upon an area of traditional state concern."⁴² In such cases, the Court has "a particular duty to insure that the federal-state balance is not destroyed."⁴³ From here, the opinion quickly reached its conclusion: Because the statute has a "tendency . . . to displace state regulation in areas of traditional state concern,"⁴⁴ and has such a weak connection to commercial concerns, it violates the Commerce Clause.

Justice Thomas also wrote a concurring opinion.⁴⁵ He reviewed the Founders' debates over the Commerce Clause and argued that the Court's Commerce Clause doctrine "has drifted from the original understanding of the Commerce Clause."⁴⁶ The "substantial effects" test, he argued, was a mistaken innovation of the 20th century that effectively gave Congress police power "over all aspects of American life."⁴⁷ Although he did not commit himself to any specific formulation, Justice Thomas urged a reconsideration of the [25 ELR 10425] special effects" test that would "temper our Commerce Clause jurisprudence."⁴⁸

The Dissenting Opinions

Justice Breyer's dissent,⁴⁹ which Justices Stevens, Souter, and Ginsburg joined, was premised on three principles: (1) that Congress could regulate intrastate activity if it significantly affected interstate commerce;⁵⁰ (2) that in assessing whether an effect was significant, the reviewing court was not to consider an individual act, but rather the cumulative effects of all similar acts; and (3) that the proper standard of judicial review is "rational basis."⁵¹

Turning to the Gun-Free School Zones Act of 1990, Justice Breyer cited numerous reports demonstrating that "the problem of guns in and around schools is widespread and extremely serious, "that widespread violence in schools "significantly interferes with the quality of education," and that education is directly linked to the national economy.⁵² Based on these reports, he argued that Congress could have reasonably concluded that gun-related violence in schools has a significant effect on interstate commerce.⁵³

Justice Breyer then attacked what he saw as three flaws in the majority opinion. First, Justice Breyer maintained that the Court's holding in Lopez was inconsistent with precedent; the connection between guns in schools and interstate commerce, he argued, was stronger than the connections in previous cases in which the Court had upheld the challenged statutes.⁵⁴ Second, Justice Breyer attacked the majority's distinction between "commercial" and "non-commercial" activities, which, he asserted, was a throwback to the untenable, formalistic distinctions in the pre-1937 cases.⁵⁵ He pointed out that the post-1937 cases did not focus on whether the regulated activity was economic, but whether it had an effect on interstate commerce.⁵⁶ In Katzenbach v. McClung,⁵⁷ Daniel v. Paul,⁵⁸ and Perez v. United States,⁵⁹ he argued, the regulated activities were not commerce, but rather racial discrimination and the use of force. Third, Justice Breyer asserted that the majority's opinion created legal uncertainty in what had been a well-settled area of law.⁶⁰

Justices Stevens and Souter also wrote dissenting opinions. Justice Stevens agreed with Justice Breyer's opinion that interstate commerce was "vitally dependent" on the education of the nation's children, and thus that Congress had ample authority to regulate guns in schools.⁶¹ He also argued that guns were both articles of commerce and articles used to restrain commerce, and that Congress therefore had full authority to regulate or prohibit their use.⁶²

Justice Souter argued that modern Commerce Clause jurisprudence had left a subsidiary role for the courts.⁶³ A "rational basis" standard of judicial review

reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices.⁶⁴

Justice Souter saw the majority's opinion as undercutting the rational basis standard of review. Not only did the Court "treat[] deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation";⁶⁵ the majority also hinted that the standard of review might depend on whether the statute dealt with an area of traditional state regulation, and on whether Congress had made specific findings that the regulated activity substantially affected interstate commerce.⁶⁶ Justice Souter argued that altering the standard of review when dealing with matters traditionally subject to state regulation "would inevitably degenerate into the sort of substantive policy review that the Court found indefensible 60 years ago."⁶⁷

Justice Souter maintained that while a congressional finding that a regulated activity substantially affected interstate commerce might be useful to a reviewing court, such a finding was unnecessary since it was implicit in the legislation. Justice Souter also believed it was not necessary to determine whether Congress was correct in finding that an intrastate activity substantially affected interstate commerce. "The only question is whether the legislative judgment is within the realm of reason."⁶⁸ Any requirement for legislative findings may result in judicial review of the wisdom of Congress' reasons, which would be a return to discredited substantive review.⁶⁹

[25 ELR 10426]

Lopez and the Future of Environmental Law

Lopez is only a single decision about a relatively insignificant statute; the real scope and impact of the Court's decision will only be revealed in future cases. Still, it is possible to make some preliminary observations about the decision and its possible impact on federal environmental legislation.

Preliminary Observations

At the outset, one must recognize that the majority's elucidation of Commerce Clause doctrine may be stillborn and have no practical impact on the next Commerce Clause case. Four members of the Court were clear that certain parts of the majority opinion are flatly wrong, and two members of the majority were at some pains to state that they reluctantly concurred in the majority opinion, that Commerce Clause doctrine should remain stable, and that the Lopez decision did not change the basic Commerce Clause landscape. The swing votes may react somewhat differently to a case involving a more consequential federal statute, or a case with a more complete record describing the impacts on interstate commerce.

Moreover, there are basic points of agreement among nearly all of the justices that may limit the long-term impact of the decision: the proper constitutional standard is whether the regulated intrastate activity has a substantial effect on interstate commerce; the proper judicial inquiry is not the effect of the litigant's activity on interstate commerce, but the aggregate impact of similarly situated individuals; and the standard of judicial review is whether Congress had a reasonable basis to conclude that the activity had a substantial effect on interstate commerce. The Justices certainly placed different emphases on these points — Justice Rehnquist's majority opinion, for example, barely mentioned the rational basis standard, whereas the dissenters dwelled on its importance — but the basic principles are unchanged. One reasonable view of Lopez is that the decision will affect only a few statutes that have the most remote connections to interstate commerce.

Despite these indications that Lopez did not radically change Commerce Clause doctrine, there are important differences between the majority and dissenting positions that may help to set the course of Commerce Clause litigation. First, and most important, the majority of Justices believe that the Commerce Clause is not a plenary delegation of the police power to Congress, and that there are significant limits to federal authority. Given the precedent of the post-1937 cases, congressional power under the Commerce Clause is unquestionably quite broad, and Lopez does not change that doctrinal fact. But the majority decision elaborated on the "substantial effects on interstate commerce" standard to establish some limits to Congress' Commerce Clause power.

The dissenting justices, by contrast, could find no significant justiciable limits to the Commerce Clause. They declined the majority's challenge to specify intrastate activities that the Commerce Clause would insulate from federal regulation. Although they asserted that federal statutes are subject to judicial review for Commerce Clause violations, their arguments suggest that as a practical matter they have adopted the view of some academics that no judicial review should be available.⁷⁰

Second, the majority specified the key factors that would give more precise meaning to "substantial effects on interstate commerce." One important consideration is whether the regulated intrastate activity involved or is closely connected to commercial activity. This factor may be a departure from the language in previous post-1937 cases, which did not explicitly turn on whether the regulated activity was commercial. While all of the cases involved economic activity of some sort, the decisions suggested that the specific characterization of the regulated activity was irrelevant. In Jones & Laughlin Steel, for example, the Court stated that "It is the effect upon commerce, not the source of the injury, which is the criterion."⁷¹

The dissenters tried to finesse the majority's point by arguing that previous Commerce Clause cases concerned federal regulation of racial discrimination or the use of force, but only their stubbornness could blind them to the fact that all of the prior Commerce Clause cases fairly directly involved some sort of economic activity. The dissenters never really dealt with the majority's argument that the firearm statute and Mr. Lopez's crime were relatively remote from economic activity. As the majority pointed out, there was no stopping point to the dissenters' argument that carrying guns in schools substantially affected interstate commerce; if guns in schools rationally could be said to substantially affect interstate commerce, any activity could be said to do so.

A separate important consideration for the majority was whether the regulated activity is an area that state authorities traditionally regulate. The Lopez majority identified education, criminal law (both of which were central to the case), and family law as areas of traditional state regulation. It is not clear from the decision what weight the majority would give to this factor, but it seemed to have had some weight in its decision. The dissenters rejected this consideration because prior cases focused only on the effect on interstate commerce, not the underlying subject matter.

Lopez and the Future of Federal Environmental Law

Given the relatively narrow differences between the majority and dissenting positions, sudden changes in the Court's view of the constitutionality of most federal environmental statutes are unlikely. Successful constitutional challenges under the Commerce Clause, if any, will most likely arise where the regulated activity has little connection to economic activity, and where it falls in an area traditionally subject solely to state regulation.

Predicting the impact of Lopez on specific environmental statutes is problematic. First, the Lopez majority did not elaborate the distinction between commercial and noncommercial activities. Nor did it provide the criteria to identify areas of traditional state authority. Absent a more precise explanation of these factors, it is difficult to forecast whether these considerations apply to a completely different statute involving an entirely different set of facts. Second, the Lopez decision was not clear about the extent to which these factors controlled its Commerce Clause analysis. These factors may [25 ELR 10427] trigger closer judicial scrutiny of federal statutes (thus undermining the rational basis standard of review, as the dissenters claimed), they may be independent bases to strike down federal legislation, or (as seems most likely) they may be factors that define the outer limits of "substantially affecting interstate commerce."

Noncommercial Activities

After Lopez, litigation challenging environmental statutes and regulations that regulate noncommercial, intrastate activities is likely. Since environmental statutes generally focus on economic activity (most environmental damage is the product of economic activity), the decision in a particular case may turn on whether the court will consider the challenged provision in isolation or in its larger regulatory context.

Lopez strongly suggests that regulation incidentally regulating noncommercial activities may survive a Commerce Clause challenge. Explaining why the federal firearm statute violated the Commerce Clause, the Lopez majority stated that "Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."⁷² Although not discussed in Lopez, a 1981 decision makes the point more clearly.

A complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.⁷³

After Lopez, the constitutionality of regulation of noncommercial intrastate activity in a particular case may depend on the emphasis the court puts on "essential."

In addition, the Lopez majority specifically reaffirmed that the federal law could still be constitutional even if the particular regulated activity had only a trivial effect on interstate commerce, as long as the aggregate impact of similarly situated individuals constituted a substantial effect on interstate commerce.⁷⁴ Thus, a court must consider the noncommercial regulation both in the context of a larger regulatory scheme (if any) and in light of the cumulative effect of the noncommercial activities on interstate commerce.

Given these limitations on the reach of Lopez, it is doubtful that many federal environmental statutes violate the Commerce Clause based on the distinction between commercial and noncommercial activities. Several statutes explicitly limit their reach to activities in or affecting interstate commerce.⁷⁵ For these statutes, the commercial/noncommercial distinction is irrelevant. Other statutes contain findings — much like those that led the Court to uphold the constitutionality of the Surface Mining Control and Reclamation Act (SMCRA)⁷⁶ in Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.⁷⁷ — that describe the impact of environmental degradation on interstate commerce.⁷⁸ Although congressional findings about the effects on interstate commerce are not binding on a court, given Hodel, they will be highly persuasive. Incidental regulation of noncommercial activities under those statutes should survive constitutional challenge. Even those statutes lacking jurisdictional limitations or congressional findings generally focus on economic activities that affect interstate commerce individually or in the aggregate; noncommercial, intrastate activities constitute only a minor portion of their regulatory schemes.⁷⁹

There are a few statutes, however, that are not clearly tied to economic activity. The SDWA established drinking water standards for public water systems, which normally deliver drinking water intrastate. Given that many of these systems are state or municipally owned, a court may conclude that their activities are "noncommercial" (one problem with Lopez is that it does not carefully define commercial and noncommercial activities). On the other hand, a court may conclude that public water systems are commercial because they sell water and that they substantially affect interstate commerce because they use equipment purchased from other states or because some water users are directly engaged in interstate commerce. After Lopez, resolution of these issues depends on the development of a clear definition of commercial and noncommercial activities, and on an [25 ELR 10428] adequate record regarding the relationship between public water systems and interstate commerce.

Arguably, another potentially vulnerable statute is the ESA,⁸⁰ which prohibits the taking and possessing of endangered species.⁸¹ Takings normally occur entirely intrastate and may well be the product of noncommercial activity. A cursory review of cases under the ESA, however, strongly suggests that takings of endangered species on private land normally occur in the course of commercial or other economic activity.⁸² Thus, the regulation of noncommercial intrastate activities under the ESA might well be a small part of a larger scheme of economic regulation substantially affecting interstate commerce,⁸³ in which case the ESA probably would survive a Commerce Clause challenge.

Traditional Areas of State Regulation

Lopez is likely to provoke challenges to statutes and regulations governing intrastate activities that traditionally have fallen under state control. Lopez gives little guidance how this factor should affect a court's Commerce Clause analysis (and, of course, the Lopez dissenters deemed the factor irrelevant). It may be an independent basis to challenge federal regulation, or it may simply be a reason to scrutinize the interstate impacts of the federal statute more carefully.

Lopez identified education, family law, and criminal law as areas of traditional state regulation. Although the first two areas are irrelevant for environmental regulation, one might add environmental law, land use, and certain public services, such as the provision of drinking water, to the list of areas of traditional state regulation.

Environmental Law. Twenty-five years ago, environmental law might have been considered an area of traditional state control that was protected by principles of federalism. Although, by today's standards, there were not many state statutes regulating pollution, there was a substantial body of state common-law doctrine — nuisance, trespass, and negligence — regulating intrastate activities causing environmental harm. In addition, virtually all states had conservation statutes protecting wildlife and certain natural resources.

Before 1970, there were few federal pollution statutes or regulations.⁸⁴ In the late 1950s and early 1960s, for example, federal air pollution statutes directed federal agencies to undertake research and provide technical assistance to states.⁸⁵ Federal regulatory authority in the mid to late 1960s was limited to motor vehicle standards (which clearly had interstate implications)⁸⁶ and interstate pollution from stationary sources.⁸⁷ Even in the areas of interstate pollution, however, federal regulation was restricted the statutory procedures were so cumbersome that the federal role remained insignificant.⁸⁸ Until 1970, Congress repeatedly made clear that the states were expected to establish, administer, and enforce any pollution control programs that might be required for intrastate activities.⁸⁹

Nevertheless, it is not clear whether environmental law before 1970 was an area of traditional state authority entitled to judicial protection from congressional hegemony. The state role may have predominated, but it was also weak; laissez-faire would have been a better characterization of state attitudes toward environmental protection. On the other hand, it is not clear whether the passage of time since 1970 alone is enough to moot federalism arguments against expanding congressional authority; 25 years is a short period of time relative to the period of time since the nation's founding, during most of which state common law was the predominant form of environmental regulation. These arguments could be developed further, but the basic issue has no satisfactory resolution, largely because Lopez failed to explain how a court would recognize an area of traditional state authority.

This puzzle, however, is entirely theoretical. As a practical matter, it is too late in 1995 to claim that federal environmental legislation in general improperly intrudes on state authority. The rapid and thorough centralization of environmental regulatory power since 1970 has completely restructured federal and state relations in this area, and it has produced huge federal and state bureaucracies that depend on the current allocation of regulatory authority. Federal environmental law has become too deeply imbedded in our legal, political, and economic culture for the Court to repeal it wholesale under the Commerce Clause. It could happen in principle, but only with a very different Court, and a very different Commerce Clause doctrine. Lopez is not the [25 ELR 10429] basis to strike down federal environmental legislation generally on the grounds that it tramples on state prerogatives. Justice Kennedy's plea for stability in Commerce Clause doctrine⁹⁰ underscores that Lopez will not lead to a radical restructuring of environmental regulatory authority.

Land Use. Arguably, some federal environmental statutes might be vulnerable to constitutional challenge because they regulate land use, which historically has been an area of state regulation. Such an argument was raised and rejected in 1981 in Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,⁹¹ which upheld SMCRA.⁹² In that case, a trade association of coal mine operators claimed that SMCRA violated the Commerce Clause because it regulated private, intrastate landuse activities. In rejecting this argument, the Court accepted congressional findings that coal moved in interstate commerce and that coal mining caused substantial environmental harms that reduced the utility of land for commercial, industrial, agricultural, and other uses.⁹³ The Court held that these findings were an adequate basis to uphold the constitutionality of the statute.⁹⁴

The Hodel Court then made two additional points that largely put to rest broad Commerce Clause challenges to federal environmental regulation affecting land use. First, the Court found the federal statute to be constitutional because Congress wanted to protect the states from competing with each other for business by relaxing environmental controls.⁹⁵ "The prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause."⁹⁶ The "race-to-the-bottom" thesis, a political justification for federal environmental controls since the adoption of the Clean Air Act (CAA),⁹⁷ had also become a constitutional basis for federal environmental legislation.

Second, the Hodel Court stated that "the power conferred by the Commerce Clause [is] broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one State."⁹⁸ So long as the congressional scheme is "reasonably related to the goals Congress sought to accomplish,"⁹⁹ the Court will uphold the federal statute.

Given that Lopez cited Hodel with approval, and that Lopez adhered to the "aggregate effects" test for intrastate activities, it is difficult to imagine that courts will find many federal environmental provisions to violate the Commerce Clause because they intrude on state land use authority. As mentioned above, many federal environmental statutes include specific congressional findings, much like those that were the basis for upholding SMCRA in Hodel, that the regulated activities affect interstate commerce.¹⁰⁰ Although other environmental statutes affecting land use lack such findings,¹⁰¹ some of them, like the CAA,¹⁰² are so tightly connected to interstate commerce, and their impacts on land use are so subsidiary, that their constitutionality is not seriously in doubt.

Other statutes, such as those regulating the disposal and cleanup of hazardous wastes,¹⁰³ are more closely tied to land use regulation. In many cases, however, hazardous wastes are generated by out-of-state firms or are byproducts of consumer goods that move in interstate commerce. The connection to interstate commerce is so clear as to overcome any concern about intruding on traditional state authority. Even waste disposal activities that are wholly intrastate probably will be found, as the Court found in Hodel, to have in aggregate a substantial effect on interstate commerce because of their impact on a range of economic activities.¹⁰⁴

Perhaps the most vulnerable statute is the ESA, which unquestionably interferes with state land use controls. Although the ESA, when applied to private land, mostly regulates commercial activity, it remains to be seen the extent to which the regulated activities, in the aggregate, affect interstate commerce. A court that both weighed heavily Lopez's concern about federal intrusion into areas of traditional state control and that viewed evidence of effects on interstate commerce as weak might be inclined to declare the ESA, or its application in a particular instance, unconstitutional.¹⁰⁵ [25 ELR 10430] More confident predictions cannot be made absent clearer guidance about the meaning and importance of traditional state controls and absent better evidence about the relationship between regulation under the ESA and interstate commerce.

If Hodel is no longer good law after Lopez, federal environmental statutes affecting land use — not just the ESA, but also other legislation controlling land use decisions — may be in jeopardy. Conceivably, Lopez may be the opening salvo in a broad constitutional attack on federal environmental laws regulating land use. It is striking, however, that when the Lopez majority identified areas of traditional state concern — education, criminal law, and family law — it made no mention of land use regulation.¹⁰⁶ Most likely, Hodel remains valid after Lopez, and Lopez will not have much impact on environmental statutes affecting land use.

[] Criminal Law. Another potential challenge may be to the criminal provisions in federal environmental statutes. Once rare (and certainly rarely used), criminal provisions have become common in federal environmental laws.¹⁰⁷ More important, federal criminal enforcement has substantially increased in the last decade,¹⁰⁸ thereby increasing the likelihood of a constitutional challenge.

Despite the implication in Lopez that federal criminal laws will receive greater scrutiny under the Commerce Clause because they invade an area of traditional state concern,¹⁰⁹ the criminal provisions in the federal environmental statutes are probably safe from attack. First, Lopez's identification of criminal law as an area of traditional state authority may not withstand careful scrutiny in future cases. Today, there is a vast array of federal criminal laws (not just environmental criminal laws), the existence of which undermines any claim of state exclusivity. Moreover, previous Commerce Clause decisions have upheld the constitutionality of federal criminal statutes,¹¹⁰ and the Court never once (until Lopez) suggested that they threatened principles of federalism.¹¹¹

Second, criminal law must be recognized as one of the basic regulatory tools — administrative, civil, or criminal — that regulators can select when enforcing environmental laws. As the Court has repeatedly made clear since Gibbons v. Ogden¹¹² in 1824, if Congress has legislative authority under the Commerce Clause, it has discretion to decide the form of regulation. Legislative power under the Commerce Clause "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."¹¹³ That Congress elects to provide for criminal enforcement of environmental laws should be of no constitutional consequence as long as Congress has basic Commerce Clause authority.

[] Public Services. Finally (and this is fairly speculative), there may be a Commerce Clause challenge to federal regulation of public services traditionally subject to state control. The most significant example is the SDWA,¹¹⁴ which establishes federal drinking water standards for public water systems. As mentioned earlier, public water systems typically provide water to in-state users, and it is not clear the extent to which public water users affect interstate commerce. As with the ESA, the case may turn on the record submitted to the court.

Conclusion

Lopez may mark a resurgence in the Court's readiness to impose limits on Congress' Commerce Clause power. Lopez is a tentative effort; it does not break new ground in the basic Commerce Clause doctrine, but it tries to identify certain characteristics of intrastate activities — whether they are commercial or noncommercial, or whether they are areas of traditional state regulation — to help determine whether they "substantially affect interstate commerce.' Lopez, strongly suggests that the federal courts will scrutinize more closely statutes that regulate noncommercial intrastate activities, or intrastate activities traditionally subject to state control.

Under Lopez, most if not all environmental laws should remain immune from constitutional attack under the Commerce Clause. Although the federal environmental laws commonly regulate intrastate activities, those activities are, for the most part, economic activities with close ties to interstate commerce. Although Commerce Clause doctrine does not require it, several statutes contain congressional findings describing the environmental impacts on interstate commerce that, under Hodel, would insulate the statutes from constitutional challenge. Even regulation of most isolated noncommercial intrastate activities will survive judicial [25 ELR 10431] review if it is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."¹¹⁵ Of course, much depends on how strictly a court reads "essential."

Some statutes, such as the ESA or the SDWA, or individual provisions in other statutes, may nonetheless be vulnerable to a Commerce Clause challenge because they frequently regulate noncommercial activities or intrastate activities traditionally subject to state control. At this point, however, the question cannot be fully resolved. Lopez's Commerce Clause doctrine — especially the definitions of commercial, noncommercial, and areas of traditional state control — remains too poorly defined doctrinally, and the relationship of interstate commerce to activities regulated under these statutes has not been investigated carefully.

1. 115 S. Ct. 1624 (1995).

2. U.S. Const. Art I, § 8, cl. 3.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465.

5. 18 U.S.C. § 922(q)(1)(A).

6. See 18 U.S.C. § 921(a)(25) (defining a school zone as "in or on the grounds" of or "within a distance of 1,000 feet" from a public or private school).

7. United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993).

8. See Carter v. Carter Coal Co., 298 U.S. 238 (1936).

9. See Wickard v. Filburn, 317 U.S. 111, 124-25 (1942). An occasional lower court decision has struck down federal regulations on the ground that they violate the Commerce Clause. See, e.g., Hoffman Homes, Inc. v. U.S. Environmental Protection Agency, 961 F.2d 1310, 22 ELR 21148 (7th Cir. 1992), vacated, 975 F.2d 1554, 22 ELR 21547 (7th Cir. 1992), vacated on reh'g, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993) (declaring unconstitutional federal regulation under § 404 of the Federal Water Pollution Control Act of an "isolated wetland" whose filling was a "purely local activity" with no interstate effect).

10. U.S. CONST. art. I, § 8, cl. 3.

11. Lopez, 115 S. Ct. at 1626 (citing Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).

12. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 303-04 (1936) (striking down a federal statute governing unfair labor practices in mines because mining did not fall under the ambit of "commerce"); Hammer v. Dagenhart, 247 U.S. 251, 271-74 (1918) (striking down a federal statute prohibiting interstate shipment of goods produced by child labor because the statute regulated "manufacturing," not "commerce"); United States v. E.C. Knight Co., 156 U.S. 1, 12-14 (1895) (holding that sugar manufacturers were exempt from the antitrust laws because manufacturing was not commerce).

13. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 546-49 (1935) (striking down wage and hour regulations for an intrastate business because the business, which purchased nearly all raw materials out-of-state, only indirectly affected interstate commerce).

14. 301 U.S. 1 (1937).

15. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 117-20 (Sanford Levinson eds., 2d ed. 1994).

16. See, e.g., Jones & Laughlin Steel, 301 U.S. at 37 (stating that the test is whether the intrastate activities "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions"); United States v. Darby, 312 U.S. 100, 119-20 (1941) (Congress may regulate intrastate activities having a "substantial effect" on interstate commerce); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942) (Congress may regulate the price of milk produced and sold intrastate because it competes with interstate milk and thus has a substantial effect on interstate commerce); Wickard v. Filburn, 317 U.S. 111, 125 (1942) (Congress may regulate an intrastate activity that "exerts a substantial economic effect on interstate commerce").

17. See, e.g., Filburn, 317 U.S. at 124-25 ("Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us"; Congress may regulate an intrastate activity that has a substantial effect on interstate commerce, "irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect'").

18. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 281, 11 ELR 20569, 20571-73 (1981) (upholding the Surface Mining Control and Reclamation Act despite claims that it intruded on local land use authority); Perez v. United States,402 U.S. 146, 154-56 (1971) (upholding a conviction for loan sharking under the Consumer Credit Protection Act even though the extortionate credit transaction was entirely intrastate); Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964) (upholding application of the Civil Rights Act to a local restaurant).

19. 295 U.S. at 548. See also United States v. E.C. Knight Co., 156 U.S. 1, 16 (1895) ("if the national power extends to all contract and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may affect external commerce, comparatively little of business operations and affairs would be left for state control"); Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) ("if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed"); Carter v. Carter Coal Co., 298 U.S. 238, 295-96 (1936) ("Every journey to a forbidden end begins with the first step; and the danger of such a step by the federal government in the direction of taking over the powers of the states is that the end of the journey may find the states so despoiled of their powers, or — what may amount to the same thing — so relieved of the responsibilities which possession of the powers necessarily enjoins, as to reduce them to little more than geographical subdivisions of the national domain.").

20. NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 37 (1937).

21. 317 U.S. 111 (1942).

22. Id. at 127-28 ("That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.").

23. Lopez, 115 S. Ct. 1624, 1630-31 (footnote omitted). The majority stated that the Court would have considered legislative findings regarding the substantiality of effects on interstate commerce. Id. at 1631-32. As there were no such findings for this statute, however, the Court had no occasion to do so. It is unclear from the opinion how much weight the majority would have given to such findings.

24. Id. at 1631.

25. Id. at 1631 n.3 (quoting United States v. Enmons, 410 U.S. 396, 411-12 (1973)).

26. Lopez, 115 S. Ct. at 1632.

27. Id.

28. Id.

29. Id. at 1633.

30. Id.

31. Id. at 1634 (Kennedy, J., concurring).

32. Id. (Kennedy, J., concurring). In a gentle rebuke to Justice Thomas, who championed the original intent of the Framers in another concurring opinion, Justice Kennedy wrote: "neither the course of technological advance nor the foundational principles for the jurisprudence itself were self-evident to the courts that sought to resolve contemporary disputes by enduring principles." Id. (Kennedy, J., concurring).

33. Id. at 1637 (Kennedy, J., concurring).

34. Id. (Kennedy, J., concurring).

35. Id. (Kennedy, J., concurring) (quoting New York v. United States, 112 S. Ct. 2408, 2418, 22 ELR 21082, 21085 (1992) (emphasis omitted)).

36. Lopez, 115 S. Ct. at 1657 (Souter, J., dissenting).

37. Id. at 1638-39 (Kennedy, J., concurring). But see Edward Rubin & Malcolm Feeley, Federalism: Some Notes on Our National Neurosis, 41 UCLA L. REV. 903 (1994) (arguing that most arguments for federalism are arguments for decentralized management, not federalism, and that the remaining arguments for autonomous state authority are insubstantial).

38. Lopez, 115 S. Ct. at 1639 (Kennedy, J., concurring).

39. See JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-95 (1980); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 65 COLUM.L. REV. 543 (1954).

40. Lopez, 115 S. Ct. at 1640 (Kennedy, J., concurring).

41. Id. (Kennedy, J., concurring).

42. Id. (Kennedy, J., concurring).

43. Id. (Kennedy, J., concurring).

44. Id. at 1641 (Kennedy, J., concurring).

45. Id. at 1642 (Thomas, J., concurring).

46. Id. (Thomas, J., concurring).

47. Id. (Thomas, J., concurring).

48. Id. at 1650 (Thomas, J., concurring).

49. Id. at 1657 (Breyer, J., dissenting).

50. Justice Breyer preferred the formulation "significant effects" to "substantial effects" because he thought it better reflects the holdings in recent cases. Id. at 1657-58 (Breyer, J., dissenting).

51. Id. (Breyer, J., dissenting).

52. Id. at 1659-61 (Breyer, J., dissenting).

53. Id. at 1661-62 (Breyer, J., dissenting).

54. Id. at 1662-63 (Breyer, J., dissenting). See Perez v. United States, 402 U.S. 146, 154 (1971) (upholding a federal statute making loan sharking a federal crime even though the activity was entirely intrastate); Daniel v. Paul, 395 U.S. 298, 304-05, 308 (1969) (upholding application of the Civil Rights Act of 1964 to a private recreational park after finding an effect on interstate commerce because the recreational park bought some of its equipment and supplies from out-of-state and probably served out-of-state patrons); Katzenbach v. McClung, 379 U.S. 294, 298-300 (1964) (upholding application of the Civil Rights Act of 1964 to a local restaurant on the grounds that the restaurant purchased about one-half of its food from out-of-state and that discrimination in restaurants generally discouraged interstate travel by blacks, even though this restaurant served no interstate travelers).

55. Lopez, 115 S. Ct. at 1663 (Breyer, J., dissenting).

56. Id. at 1663-64 (Breyer, J., dissenting) (citing Wickard v. Filburn, 317 U.S. 111, 125 (1942)).

57. 379 U.S. 294 (1964).

58. 395 U.S. 298 (1969).

59. 402 U.S. 143 (1971).

60. Lopez, 115 S. Ct. at 1664-65 (Breyer, J., dissenting).

61. Id. at 1651 (Stevens, J., dissenting).

62. Id. (Stevens, J., dissenting).

63. Id. (Souter, J., dissenting).

64. Id. at 1651-52 (Souter, J., dissenting). Justice Souter pointed out that the post-1937 switch to rational basis review of federal statutes paralleled an analogous switch in due process doctrine involving challenges to state economic regulation. Id. at 1652-53 (Souter, J., dissenting).

65. Id. at 1653 (Souter, J., dissenting).

66. Id. at 1654 (Souter, J., dissenting).

67. Id. at 1655 (Souter, J., dissenting).

68. Id. at 1656 (Souter, J., dissenting).

69. Id. at 1656 57 (Souter, J., dissenting).

70. See CHOPER, supra note 39, at 175-95; Wechsler, supra note 39.

71. NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1, 32 (1937).

72. Lopez, 115 S. Ct. 1624, 1631 (1995).

73. Hodel v. Indiana, 452 U.S. 314, 329 n.17, 11 ELR 20581, 20585 n.17 (1981).

74. Lopez, 115 S. Ct. at 1628 (citing Wickard v. Filburn, 317 U.S. 111, 127-28 (1942); Id. at 1629 (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27 (1968) ("where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence").

75. See Federal Hazardous Substances Act, 15 U.S.C. § 1263 (prohibited acts regarding hazardous substances in interstate commerce); Toxic Substances Control Act, 15 U.S.C. §§ 2602(3)-(4), 2603(a), ELR STAT.TSCA §§ 3(3)-(4), 4(a) (testing requirements for chemicals distributed in interstate commerce); Migratory Bird Treaty Act, 16 U.S.C. § 705 (regulating interstate transportation of migratory birds); Federal Water Pollution Control Act, 33 U.S.C. §§ 1342(a), 1362(7), (12), ELR STAT. FWPCA §§ 402(a), 502(7), (12) (requiring permits for discharges of pollutants to waters of the United States); Noise Control Act, 42 U.S.C. §§ 4902(7), 4909(a) (prohibited acts for products distributed in interstate commerce); Hazardous Materials Transportation Act, 49 U.S.C. § 5102(1) (defining reach of the Act to cover interstate commerce and activities that affect interstate commerce).

76. See 30 U.S.C. § 1201(c), (g), (j), ELR STAT. SMCRA § 101(c), (g), (j)) (congressional findings describing the impacts of coal mining on interstate commerce).

77. 452 U.S. 264, 281, 11 ELR 20569 (1981).

78. See Toxic Substances Control Act, 15 U.S.C. § 2601(a)(3). ELR STAT. TSCA § 2(a)(3) (effective regulation of interstate commerce in toxic chemicals requires federal regulation of intrastate commerce in toxic chemicals); Marine Mammal Protection Act, 16 U.S.C. § 1361(5), ELR STAT. § 2(5) (marine mammals and marine mammal products move in interstate commerce or affect marine ecosystems important to other animals or animal products that move in interstate commerce); Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7901 (regulation of interstate commerce requires federal regulation of environmental impacts of uranium mill tailings).

79. See Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-31 (establishing registration and labeling requirements for pesticides); Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4831 (requiring federal agencies to adopt regulations prohibiting the use of lead-based paint in cooking utensils, toys, and furniture); Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012 (establishing standards for the transportation, storage and disposal of hazardous wastes); Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618 (establishing standards for air pollution); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405 (establishing liability and standards for the cleanup of hazardous substances).

80. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

81. Id. § 1538(a), ELR STAT. ESA § 9(a).

82. See, e.g., United States v. Clark, 986 F.2d 65, 23 ELR 20834 (4th Cir. 1993) (sale of endangered species); United States v. Ivey, 949 F.2d 759 (5th Cir. 1991) (sale of furs of endangered species); United States v. Nguyen, 916 F.2d 1016, 21 ELR 20486 (5th Cir. 1990) (taking of sea turtles by fishermen); Louisiana v. Verity, 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988) (taking of sea turtles by shrimpers); Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (destruction of habitat to maintain livestock); Christy v. Hodel, 857 F.2d 1324, 18 ELR 21430 (9th Cir. 1988) (prohibition on the killing of grizzly bears to protect ranchers' livestock); Man Hing Ivory and Imports, Inc. v. Deukmejian, 702 F.2d 760, 13 ELR 20477 (9th Cir. 1983) (trade in endangered species).

83. See United States v. Lopez, 115 S. Ct. 1624, 1631 (1995); Hodel v. Indiana, 452 U.S. 314, 329 n.17, 11 ELR 20581, 20585 n.17 (1981).

84. See Hoffman Homes, Inc. v. U.S. EPA, 961 F.2d 1310, 1323, 22 ELR 21148, 21154 (7th Cir. 1992) (before 1970, federal regulation of the environment was not based on the Commerce Clause, but rather on the Treaty Clause (permitting federal legislation to implement international treaties) and the Property Clause (permitting federal regulation of federal lands)).

85. See Air Pollution Control Act of 1955, Ch. 360, Pub. L. No. 84-159, 69 Stat. 322 (1955) (creating a federal program to undertake research and to provide technical assistance to the states); Motor Vehicle Act of 1960, Pub. L. No. 86-493, 74 Stat. 162 (1960) (authorizing research into the effects and control of air pollution from cars); Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392 (1963)(extending federal research and technical assistance programs and giving the Department of Health, Education, and Welfare authority to adopt advisory air quality criteria).

86. Motor Vehicle Air Pollution Control Act of 1965, Pub. L. No. 89-272, 79 Stat. 992 (1965) (although Congress established federal authority to set standards for new motor vehicles, it did not preempt state regulatory authority); Air Quality Act of 1967, Pub. L. No. 90-148, § 2, 81 Stat. 485, 501 (1967)(preempting, with the exception of California, state motor vehicle standards).

87. See Clean Air Act of 1963, Pub. L. No. 88-206, 77 Stat. 392 (1963).

88. Sidney Edelman, Air Pollution Abatement Procedures Under the Clean Air Act, 10 ARIZ. L. REV. 30 (1968); John E. O'Fallon, Deficiencies in the Air Quality Act of 1967, 33 LAW & CONTEMP. PROBS. 275 (1968).

89. See Pub. L. No. 88-206, 77 Stat. 392, 393 (1963) ("the prevention and control of air pollution at its source is the primary responsibility of State and local government"); Air Quality Act of 1967, Pub. L. No. 90-148, § 2, 81 Stat. 485, 490-97 (1967) (reiterating primacy of state regulation and enforcement authority).

90. United States v. Lopez, 115 S. Ct. 1624, 1637 (1995)(Kennedy, J., concurring).

91. Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 11 ELR 20569 (1981).

92. Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

93. Hodel, 452 U.S. at 277-81, 11 ELR at 20572-73. See 30 U.S.C. § 1201(c), (j), ELR STAT. SMCRA § 101(c), (j).

94. Hodel, 452 U.S. at 281, 11 ELR at 20573.

95. See 30 U.S.C. § 1201(g), ELR STAT. SMCRA § 101(g).

96. Hodel, 452 U.S. at 282, 11 ELR 20573 (citing United States v. Darby, 312 U.S. 100, 115 (1941)).

97. John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. (forthcoming Fall 1995)(detailing congressional justifications for federal regulation of air pollution); Richard Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992) (challenging the factual bases for the rationale); Richard Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1212 (1977)(describing the race-to-the-bottom rationale).

98. Hodel, 452 U.S. at 282, 11 ELR at 20573.

99. Id. at 283, 11 ELR at 20573.

100. See Toxic Substances Control Act, 15 U.S.C. § 2601(a)(3), ELR STAT. TSCA § 2(a)(3)(effective regulation of interstate commerce in toxic chemicals requires federal regulation of intrastate commerce in toxic chemicals); Marine Mammal Protection Act, 16 U.S.C. § 1361(5), ELR STAT. MMPA § 2(5) (marine mammals and marine mammal products move in interstate commerce or affect marine ecosystems important to other animals or animal products that move in interstate commerce); Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7901 (regulation of interstate commerce requires federal regulation of environmental impacts of uranium mill tailings).

101. See Endangered Species Act, 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18 (prohibiting the taking of endangered species); Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012 (establishing standards for the transportation, storage, and disposal of hazardous wastes); Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618 (establishing standards for air pollution); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405 (establishing liability and standards for the cleanup of hazardous substances).

102. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

103. Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012; Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

104. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 277-81, 11 ELR 20569, 20572-73 (1981)(describing environmental impacts of coal mining on commercial, industrial, residential, and agricultural activities as a basis to uphold the surface mining statute).

105. Of course, the ESA and other statutes affecting land use might be upheld under other constitutional provision, such as the Property Clause, U.S. CONST. art. IV, § 3, cl. 2, or the Treaty Power, U.S. CONST. art. II, § 2. See Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976) (upholding federal legislation protecting free-roaming horses on federal lands under the Property Clause); Missouri v. Holland, 252 U.S. 416 (1920) (upholding an earlier version of the Migratory Bird Treaty Act under the Treaty Power).

106. See Lopez, 115 S. Ct. 1624, 1632.

107. E.g., Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136(b), ELR STAT. FIFRA § 14(b); Endangered Species Act, 16 U.S.C. § 1540(b), ELR STAT. ESA § 11(b); Federal Water Pollution Control Act, 33 U.S.C. § 1319(c), ELR STAT. FWPCA § 309(c); Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), ELR STAT. RCRA § 3008(d); Clean Air Act, 42 U.S.C. § 7413(c), ELR STAT. CAA § 113(c); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b), ELR STAT. CERCLA § 103(b).

108. U.S. EPA, ENFORCEMENT ACCOMPLISHMENTS REPORT FY 1993, at 2-2 (Apr. 1994).

109. Lopez, 115 S. Ct. 1624, 1631 n.3.

110. United States v. Darby, 312 U.S. 100 (1941) (violation of wage and hour regulations); Perez v. United States, 402 U.S. 146 (1971) (loan sharking).

111. See United States v. Robertson, 115 S. Ct. 1732 (1995) (upholding a conviction under the Racketeer Influenced and Corrupt Organizations Act after concluding that a company that purchased equipment out-of-state employees from other states and then shipped some of its product out-of-state was "engaged in interstate commerce," without giving any weight to the fact that the challenged statute was a criminal statute).

112. 9 Wheat. 1 (1824).

113. Id. at 196. See also Hodel v. Virginia Surface Mining & Reclamation Ass'n. Inc., 452 U.S. 264, 283, 11 ELR 20569, 20573 (1981) (stating that the regulatory scheme need only be "reasonably related to the goals Congress sought to accomplish").

114. 42 U.S.C. §§ 300f-300j-2b, ELR STAT. SDWA §§ 1401-1465.

115. Lopez, 115 S. Ct. at 1631.