Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers

Michael J. Gerhardt

The author is a Professor of Law, William & Mary Law School.

In the span of just a few years, the U.S. Supreme Court has brought the venerable constitutional concept of federalism back to life with a vengeance. In the 1999 Term alone, the Rehnquist Court struck down three federal laws for violating basic principles of federalism¹ and narrowly construed a fourth to avoid any conflict with those precepts.² When viewed in conjunction with the Court's other recent defenses of federalism ideals, this activity takes on historic proportions: in the past 5 years, the Rehnquist Court has struck down 23 federal laws, including 11 for exceeding Congress' authority under the U.S. Commerce Clause, § 5 of the Fourteenth Amendment, or both.³ Not since the titanic conflict between Congress and the Court in the 1930s over the fate of the New Deal has the Court been as active as it has in recent years in enforcing federalism-based limitations on congressional power.

The implications of the Court's recent federalism decisions have been the subject of considerable speculation, particularly with respect to their likely impact on areas in which the Congress frequently or routinely uses its powers under the Commerce Clause and § 5 of the Fourteenth Amendment. Perhaps no area has been the focus of more concern than environmental law, the field in which Congress arguably moit frequently resorts to its Commerce Clause power. Though none of the Court's federalism decisions over the past five years involved challenges to federal environmental regulations, the opinions gave no indication of any field exempted from the application of their reasoning. Indeed, if there were any doubt about the Court's willingness to confront the implications of its recent federalism decisions for environmental law, it resolved them in one of its last decisions of the 1999 Term. Just before the end of the Term, the Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),⁴ agreed to hear a constitutional challenge to the U.S. Environmental Protection Agency's (EPA's) and the U.S. Army Corps of Engineers' migratory bird rule, which prohibits the destruction of any wetlands,⁵ including isolated ones,⁶ that are likely to be or actually are frequented by migratory birds.⁷ Together with these agencies' broad assertion of federal jurisdiction of any waters that "could affect" interstate commerce,⁸ the rule has generated considerable controversy as impediments to commercial and other development on private property with no apparent or direct connection to interstate waterways.⁹ [30 ELR 10981] Thus, in agreeing to hear a constitutional challenge to this rule, the Court will have a critical opportunity to clarify the implications of its recent federalism decisions for what is commonly perceived as the federal government's most aggressive effort to protect the quality of the nation's waters.

The purpose of this Article is to assess the implications of the Court's recent federalism decisions for environmental law generally and for the federal government's controversial wetland regulations in particular. Initially, I review the Court's most recent decisions on congressional authority under the Commerce Clause and their implications for federal environmental regulations. Secondly, I examine the Court's recent rulings on the scope of congressional authority under § 5 of the Fourteenth Amendment and their implications for environmental law, particularly for congressional efforts to vindicate environmental justice. Thirdly, I explore the implications of the Court's recent federalism opinions for the federal government's wetland regulations, particularly the pending decision in SWANCC. Lastly, I review alternative bases for future congressional efforts to protect wetlands and migratory birds.

In concluding, I suggest an important lesson for Congress to derive from the Court's recent federalism opinions. Even if the federal government lacks authority under the Commerce Clause or § 5 of the Fourteenth Amendment to protect the environment in certain ways (such as through the migratory bird rule), Congress has other authorities to enact its preferred regulations. The common problem running throughout the Court's recent federalism cases is that Congress has not exercised appropriate caution and deliberation in choosing both the source and the means by which it seeks to protect the environment through regulations of private or purely local activity. Nothing in the Court's recent federalism decisions forecloses the Congress from using other powers, such as the authorities it derives from its treaty and spending powers and the property clause, to fashion environmental laws it deems necessary.

The Rehnquist Court and the Commerce Clause

Over the past few decades, Congress has drawn on various sources of authority to enact environmental laws, including the power to regulate interstate commerce, the power to tax and spend, the power to enter into treaties, and the power to regulate the use of public lands. In practice, the most commonly employed among these is of course Congress' power to regulate interstate commerce.¹⁰ The overwhelming bulk of federal environmental legislation derives from this authority, including the Clean Air Act (CAA),¹¹ the Clean Water Act (CWA),¹² and federal laws governing solid and hazardous waste, pesticides, toxic chemicals, and nuclear energy.

From the late 1930s until 1995, the Court had given no indication that any part of the voluminous body of federal environmental legislation was constitutionally problematic. To the contrary, the Court consistently signaled its willingness to give the widest possible judicial deference to federal environmental policies enacted under the Commerce Clause. A classic expression of this deference occurred in Hodel v. Virginia Surface Mining & Reclamation Ass'n,¹³ in which the Court upheld the constitutionality of federal strip-mining regulation.¹⁴ In assessing the constitutionality of this and other legislation enacted pursuant to Congress' power to regulate interstate commerce, the Court explained its task was "relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding . . . . The judicial task is at an end once the court determines that Congress acted rationally in adopting a particularly regulatory scheme."¹⁵ The Court explained further that it was irrelevant whether land use is considered a "local" activity.¹⁶ So long as it was "rational" for Congress to consider a regulation necessary to protect interstate commerce from adverse effects, characterization of the activity as local was irrelevant.¹⁷ The Court also rejected the argument that the challenged act was unnecessary because various other federal standards already adequately addressed the federal interests in controlling the effects of surface mining. According to the Court, "the short answer is that the effectiveness of existing laws in dealing with the problems identified by Congress is ordinarily a matter committed to legislative judgment."¹⁸

The conventional wisdom was that the rational basis employed in Hodel and other cases involving challenges to congressional regulations of interstate commerce effectively established no constraints for all practical purposes on federal power. Because the rational basis test merely requires that some rationale objective supported a law (regardless of whether it actually existed), it effectively placed no limits on federal power. Cases such as Hodel gave such a high degree of deference to Congress' efforts to regulate interstate commerce that almost any imaginable statute seemed destined to be upheld.

In 1995, the Court dramatically changed course. In the seminal case of United States v. Lopez¹⁹ decided that year, the Court for the first time in over five decades struck down a federal regulation of private activity for exceeding Congress' Commerce Clause authority. In particular, the Court struck down the Gun Free School Zones Act of 1990, a federal statute prohibiting the knowing possession of firearms within 1,000 feet of a school. At the beginning of his opinion for the five-member majority,²⁰ Chief Justice Rehnquist invoked the original understanding that Congress' powers are "'few and defined,'" while state powers are "'numerous and indefinite.'"²¹ He emphasized that the original function of this division of powers was to assist in preserving liberty, i.e., "'to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny [30 ELR 10982] and abuse from either front.'"²² Admittedly, he added, the scope of federal power expanded in the post-New Deal era, partly because of the "great changes" in the economy,²³ and partly because of a desire to eliminate what were considered "artificial] [" restraints on federal power.²⁴ Nevertheless, the post-New Deal case law recognized "three broad categories of activity that Congress may regulate under its commerce power."²⁵ In particular, Congress may regulate the "channels of interstate commerce,"²⁶ the instrumentalities of interstate commerce, and those activities that "substantially affect" interstate commerce.²⁷ Possession of a gun in a school zone, even if it had traveled in interstate commerce, failed to meet any part of that test. The Chief Justice explained that the statute did not regulate a commercial activity but rather education, a traditional area of state concern; that Congress had made no findings about the effect of the prohibited activity on interstate commerce; and that the statute contained no requirement of any proof of any nexus between the defendant's activity and interstate commerce. Therefore, the law exceeded Congress' power to "regulate Commerce."²⁸

After Lopez, numerous questions arose about the extent to which the Rehnquist Court was prepared to apply its reasoning in the case to other contexts. For instance, in passing the statute struck down in Lopez, Congress had offered no legislative findings to support the conclusion that the regulated activity—possessing a gun in a school zone—affected interstate commerce.²⁹ Would the Court be more deferential to Congress if Congress made explicit findings or established a record of the nexus between the regulated activity and interstate commerce? Moreover, Congress did not include a jurisdictional element establishing that the federal law struck down in Lopez was made in pursuance of Congress' power to regulate interstate commerce. Would the inclusion of such an element in a future case make any difference? In addition, the majority opinion and Justice Kennedy's concurrence, joined by Justice O'Connor, emphasized the noncommercial nature of the defendant's activity, which was simply to be present in the vicinity of a school while in possession of a firearm.³⁰ Did this mean that Congress could never use its Commerce Clause power to regulate noncommercial activity? Would it be enough for legislation to pass constitutional muster if it did regulate commercial activity (as is the case with so much environmental regulation), or was something more required?

In the 1999 Term, the Court answered some of these questions. In perhaps its most dramatic decision of the Term, the Court in United States v. Morrison³¹ held that the section of the Violence Against Women Act (VAWA) that provided a civil remedy for the victims of gender-motivated violence exceeded Congress' authority under both the Commerce Clause and § 5 of the Fourteenth Amendment. In an opinion for the five-member majority—the same five members that comprised the majority in Lopez—Chief Justice Rehnquist explained that the civil remedy provision could pass constitutional muster only if it fit within one of the three categories of legitimate Commerce Clause regulations recognized in Lopez.³² Since the law was obviously not directed at the regulation of an instrumentality or channel of interstate commerce, the only question for the Court to decide was whether it substantially affected interstate commerce. The Court found, however, no meaningful differences between the civil remedy provision of the VAWA and the Gun Free School Zones Act of 1990. The laws at issue in both cases, in the Court's judgment, were not directed at regulating economic or commercial activities. Referring to Lopez, the Court explained that

the noneconomic, criminal nature of the conduct at issue was central to our decision in [Lopez] . . . . Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.³³

In short:

Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.³⁴

In Morrison, the Court rejected the federal government's claims that, in spite of the fact that the civil remedy provision of the VAWA was not directed at commercial or economic activity, the Court should have deferred to Congress' extensive findings, based on four years of investigation and hearings, that the remedy did focus on activity that had the aggregate effect of substantially affecting interstate commerce. The Court refused to give any special deference to Congress under the circumstances in Morrison, because upholding the statute would have required the Court to

follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the primary object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime so long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-related violence, as a subset [30 ELR 10983] of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.³⁵

In short, the Court concluded that upholding the provision under the federal government's theory would require obliterating the important

distinction between what is truly national and what is truly local[,] one of the few principles that has been consistent since the [Commerce] Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.³⁶

In yet another decision rendered near the end of the 1999 Term, the Court confirmed its commitment to applying the Lopez framework across the board to all congressional regulations of interstate commerce, even environmental laws. In Jones v. United States,³⁷ the Court reviewed the criminal conviction of a man who had been convicted of violating a federal arson law³⁸ that made it a federal crime for someone to damage or destroy, "by means of fire or an explosive, any . . . property used [in] interstate or foreign commerce or in any activity affecting interstate or foreign commerce."³⁹ The defendant had thrown a Molotov cocktail into a private residence in the state of Indiana. He argued that his conviction under the federal arson law should be overturned because the law could not be construed consistently with the Commerce Clause to apply to owner-occupied residences. The federal government argued, however, that the law could be applied consistently with the Commerce Clause to his activities because the residence into which he had tossed the Molotov cocktail was constantly "used" in at least three activities affecting interstate commerce: (1) as collateral to secure a mortgage from an out-of-state lender in Oklahoma who in turn used the property as a security for the home loan; (2) to obtain a casualty insurance policy from an out-of-state insurer in Wisconsin; and (3) to receive natural gas "from sources outside Indiana."⁴⁰

The Court unanimously rejected the federal government's broad construction of the statutory term "used" to establish a link to interstate commerce. "Were we to adopt the Government's expansive interpretation" of the term, Justice Ginsburg wrote for the unanimous Court,

hardly a building in the land would fall outside the federal statute's domain. Practically every building in our cities, towns, and rural areas is so constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace to interstate commerce. . . . If such connections sufficed to trigger . . . the statute's limiting language "used in" any commerce-affecting activity would have no office.⁴¹

Moreover, the activity that the federal authorities sought to criminalize in Jones had no better or credible connection to interstate commerce than the regulated activity did in Lopez: both activities pertained, in the Court's view, to the "traditional" state domains.⁴² The Court thus refused to accept the federal government's entreaty to adopt a construction of the federal arson law that would in effect make "virtually every arson in the country a federal crime."⁴³ Recognizing that Congress lacked the authority under the Commerce Clause to make every arson a federal criminal offense (because not every dwelling destroyed by arson could conceivably constitute an instrumentality or channel of interstate commerce or, if the effects of its destruction were aggregated, could substantially affect interstate commerce), the Court read the statute more narrowly to "cover] [ only property currently used in commerce or in an activity affecting commerce."⁴⁴ Since the private residence destroyed in Jones "was not so used," the Court vacated defendant Jones' conviction.⁴⁵

After Lopez, Jones, and Morrison, it is quite clear that the Court no longer defers automatically to a congressional exercise of its power to regulate interstate commerce. Instead, every congressional enactment under the Commerce Clause must fit within the relatively rigid framework set forth in Lopez. In other words, the regulated activity must include an instrumentality of interstate commerce (e.g., an airplane or bus), a channel of interstate commerce (e.g., navigable waters), or an activity either on its own or whose aggregated effects if left unregulated would "substantially affect" interstate commerce.

This latter category of course is the one whose precise contours have yet to be fully delineated. To be sure, it is clear that the Court will not readily accept congressional findings that a regulated activity "substantially affects" interstate commerce. But if the regulated activity is commercial or economic, the Court will defer to congressional findings that the regulated activity either on its own or particularly in aggregation will have effects, if left unregulated, that do substantially affect interstate commerce.⁴⁶ The critical question left open by Morrison is, however, what kind of noncommercial or noneconomic activity would the Court accept as legitimate for Congress to find could substantially affect interstate commerce? Is it possible that one such noneconomic or noncommercial activity would be the destruction of isolated wetlands (and, with their destruction, the obliteration of habitats of migratory birds around which commercial enterprises such as hunting might have been constructed around)? An important, related question would be precisely what would regulators have to establish in order to satisfy the Court that the appropriate nexus exists between the regulated noncommercial activity and interstate commerce?

A second line of recent Commerce Clause opinions clarifies another important constraint on congressional authority [30 ELR 10984] to regulate interstate commerce. According to the Court, the Eleventh Amendment⁴⁷ and the inherent limitations of Congress' authority to regulate interstate commerce prohibit Congress from ordering, mandating, compelling, forcing, or coercing any state authority—legislative,⁴⁸ executive,⁴⁹ or judicial⁵⁰—to comply with, adopt, or implement a federal policy.

To be sure, the Court mid-way through the 1999 Term signaled an important exception to the scope of the protections accorded to state sovereignty in the latter series of decisions. In Reno v. Condon,⁵¹ the Court unanimously held that its prior decisions⁵² did not limit Congress' ability to regulate the commercial vending of personal data by the states. At issue were amendments to the federal Driver's Privacy Protection Act of 1994 (DPPA), which regulated and restricted the ability of the states to sell the personal information their motor vehicle departments collect on drivers and car owners.

The Court unanimously upheld the constitutionality of DPPA as a valid exercise of Congress' Commerce Power. Speaking for the unanimous Court, Chief Justice Rehnquist agreed with the government's contention that because

the personal, identifying information [regulated by the act is] a thing in interstate commerce, . . . the sale or release of that information is therefore a proper subject of congressional regulation. . . . Because drivers' information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation.⁵³

In rejecting South Carolina's claims that the Act invaded its sovereignty, the Chief Justice explained that the Act did not regulate the states as states, something that would have been unconstitutional under its prior decisions, but rather it regulated the states only as "the owners of databases."⁵⁴ He further explained that the DPPA was constitutional because it was "generally applicable. The DPPA regulates the universe of entities that participate as suppliers to the market of motor vehicle information—the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce."⁵⁵

This second line of decisions, including Condon, indicates two other important principles that federal efforts to regulate interstate commerce, particularly in the form of federal environmental laws, must satisfy in the foreseeable future. First, the federal government may not coerce, compel, or force any part of a state government to participate, implement, adopt, or enforce a federal environmental law or policy. Second, Congress may regulate states in limited circumstances in which they are being regulated not as states but strictly to the extent that they are acting as the owners or consumers of articles of commerce (such as water) or participating in commercial or economic activity that Congress may otherwise use its commerce power to regulate generally (such as the consumption of energy).

The Rehnquist Court and § 5 of the Fourteenth Amendment

In the 1999 Term, the Court decided three important opinions dealing with the scope of Congress' authority under § 5 of the Fourteenth Amendment. In all three cases, the Court struck down the federal laws at issue. The first case was Kimel v. Florida Board of Regents.⁵⁶ In Kimel, the Court ruled 5 to 4 that Congress had exceeded its Fourteenth Amendment remedial authority in allowing state employees to sue the states for damages under the Age Discrimination in Employment Act (ADEA). The five-member majority was precisely the same as it had been in Morrison and Lopez. After noting the Fourteenth Amendment was the sole source of congressional authority to abrogate state sovereign immunity under the Eleventh Amendment,⁵⁷ [30 ELR 10985] the Court examined the ADEA under the "proportionality and congruence test" set forth three years earlier in City of Boerne v. Flores⁵⁸ for assessing the constitutionality of § 5 enactments.⁵⁹

Writing for the five-member majority, Justice O'Connor explained the limits of congressional authority under § 5: "Congress cannot 'decree the substance of the Fourteenth Amendment's restrictions on the states . . . . It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation. . . . The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch."⁶⁰ The problem in Kimel was that the statute at issue deviated far too much from the substantive scope of the Equal Protection Clause as previously recognized by the Court. In particular, Justice O'Connor found that "the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the act."⁶¹ She explained that the Constitution allowed the "states to draw lines on the basis of age when they have a rational basis for doing so at a class-based level, even if it 'is probably not true' that these reasons are valid in the majority of cases,"⁶² but the ADEA "prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection [standard]. [Congress] through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny."⁶³ Compounding this lack of proportionality, Congress had "never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. It had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age."⁶⁴ Accordingly, the Court found the act was not "appropriate" legislation as licensed by § 5 of the Fourteenth Amendment.

City of Boerne also figured prominently in a second case from the 1999 Term, Dickerson v. United States,⁶⁵ in which the Court struck down a federal statute for exceeding the scope of congressional power under § 5. As in City of Boerne, Dickerson involved a congressional attempt to override a constitutional ruling by the Court with which Congress disagreed. In Dickerson, the statute at issue sought to supersede the constitutional safeguards previously recognized in Miranda v. Arizona⁶⁶ as protecting suspects during custodial interrogation. Tracking the Court's reasoning in City of Boerne, the Court found the statute to be a flagrant violation of separation of powers and to be exactly contrary to the proportionality or congruence as required by § 5 of the Fourteenth Amendment. Chief Justice Rehnquist explained for the seven-member majority that Congress "retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. But Congress may not legislatively supersede our decisions interpreting and applying the Constitution."⁶⁷

Morrison is the third case from last Term in which the Court struck down a federal law for exceeding Congress' authority under § 5. After concluding the law exceeded the scope of Congress' authority to regulate interstate commerce,⁶⁸ the Court explained that to qualify as an appropriate exercise of § 5 authority the civil remedy provision of the VAWA had to both focus on state action (particularly the state actors whom Congress had found committed constitutional violations), because the Fourteenth Amendment only applies to state action, and possess a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."⁶⁹ The civil remedy provision lacked the requisite proportionality and congruence, because its focus was not on state action at all but rather private action—something that was completely beyond the scope of the Fourteenth Amendment. Moreover, the VAWA provided remedies that would apply "uniformly throughout the Nation" even though Congress had failed to demonstrate the problems addressed by those remedies "existed in all States, or even most States."⁷⁰

Kimel, Dickerson, Morrison, and other rulings on the scope of congressional authority under § 5 of the Fourteenth Amendment are especially relevant to environmental law in the realm of environmental justice or racism. It is well documented that landfills, incinerators, and similar environmentally problematic facilities are disproportionately sited in low-income communities and are especially burdensome to racial minorities.⁷¹ If Congress were to use its § 5 authority to address these burdens, several things are clear, after the 1999 Term, about how it should go about doing so. First, Congress may not address private activity in its statute. Second, Congress must create a suitable legislative record to justify or support the need for its § 5 legislation. In other words, Congress needs to study carefully the scope of the [30 ELR 10986] problem it seeks to redress, draft an appropriate jurisdictional statement, and put together a credible record of the specific unconstitutional actions of states or state actors addressed in its statute. Third, Congress' enforcement efforts under § 5 may not violate another provision of the U.S. Constitution. Moreover, it may not employ its § 5 power (or, for that matter, any other power) to override, displace, or significantly modify the constitutional elements recognized by the Court for violations of the Fourteenth Amendment by the states. Thus, a finding of a disproportionate impact on a racial minority is an insufficient or inappropriate basis on which to make state officials responsible for it⁷²; instead, Congress must comply with the prevailing standard and show that the states or state actors whom it is targeting in legislation intended to discriminate against the burdened racial minorities.⁷³ Moreover, if Congress were to choose to make an explicit racial classification in a § 5 enactment, its statute must be narrowly tailored and have a compelling justification.⁷⁴ In addition, there must be proportionality and congruence between the injury to be prevented or remedied and the means adopted to that end. In meeting this requirement, Congress may not substantially deviate from either what the Court has already said about the scope of substantive protections or what it ultimately says or is likely to say.⁷⁵ In other words, Congress may not provide either a lot more or a lot fewer protections than the Constitution other-wise allows.

The SWANCC Question

Section 404 of the CWA⁷⁶ expressly limits the jurisdiction of the Corps to the "waters of the United States."⁷⁷ Both EPA and the Corps have defined the latter phrase as including "all the waters . . . the use, degradation, or destruction of which could affect interstate or foreign commerce."⁷⁸ In the regulation that has become commonly known as the migratory bird rule,⁷⁹ EPA and the Corps have further interpreted the phrase "could affect interstate or foreign commerce" as allowing the extension of federal jurisdiction to any wetlands, regardless of their proximity to navigable or interstate waterways,⁸⁰ based on the presence of migratory birds.

The constitutionality of the migratory bird rule is the central issue pending before the Court in SWANCC.⁸¹ The question comes to the Court in an appeal from the Seventh Circuit, which upheld the rule.⁸² In her opinion, Judge Diane Wood recognized that in order to pass constitutional muster the migratory bird rule had to fit within one of the three categories of legitimate Commerce Clause exercises of power recognized in Lopez. While Judge Wood acknowledged the rule plainly did not involve regulation of either an instrumentality or channel of interstate commerce, she found the regulated activity targeted in the rule did "substantially affect" interstate commerce.⁸³ The "destruction of migratory bird habitat and the attendant decrease in the populations of these birds" could, if aggregated, substantially affect the multibillion dollar businesses of hunting and observing migratory birds.⁸⁴ She explained, "the effect [on interstate commerce] 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."⁸⁵

Judge Wood's opinion was not the first to consider the legitimacy of federal regulations protecting wetlands based on the migration of birds. In United States v. Wilson,⁸⁶ the Fourth Circuit, in reversing a criminal conviction for illegally filling a wetland for residential development, held it erroneous for a trial judge to have instructed the jury to extend the jurisdiction of § 404 to waters that lack a direct or indirect surface connection to interstate or navigable waters. The court struck down the Corps' regulations requiring such an extension⁸⁷ as incompatible with Lopez because they permitted the assertion of federal jurisdiction over isolated wetlands based on the tenuous connection between the covered wetlands and the mere possibility that something could happen to them that "could" affect interstate or foreign commerce.⁸⁸ [30 ELR 10987] Judge Wood distinguished SWANCC from Wilson on the basis that

the question whether Congress may regulate waters based on their potential to affect interstate commerce is not presented [in the former], because the unchallenged facts show that the filling of the 17.6 acres would have an immediate effect on migratory birds that actually use the area as a habitat. Thus, we need not, and do not, reach the question of the Corps' jurisdiction over areas that are only potential habitats.⁸⁹

Judge Wood also had to reconcile her opinion with a prior en banc opinion in her own circuit. The panel decision in the case, Hoffman Homes v. U.S. Environmental Protection Agency (Hoffman Homes I),⁹⁰ provided the first opportunity for a federal appellate court to hear a Commerce Clause challenge to an application of § 404. In Hoffman Homes I, the Seventh Circuit panel, in an opinion by Judge Daniel Manion, rejected EPA's argument that the potential use of an isolated wetland by migratory birds for nesting or feeding supported the establishment of federal jurisdiction under the Commerce Clause. Other than a theoretical impact on migratory birds, EPA offered no explanation of how the filling of Hoffman's wetland (for which Hoffman had been denied a permit by the Corps) could affect interstate commerce. Yet allowing the potential alighting of waterfowl to trigger federal jurisdiction would obliterate any limitation of the federal government's Commerce Clause power. "After all, what area of the United States is not a potential landing spot for migratory birds?," Judge Manion rhetorically inquired.⁹¹ The Commerce Clause confers substantial power, the panel ruled in 1992, but not so substantial a grant as to permit an assertion of unlimited jurisdiction.

EPA sought a rehearing of the case and the Seventh Circuit en banc vacated the decision in Hoffman I in favor of a narrower ruling in Hoffman Homes v. U.S. Environmental Protection Agency (Hoffman II).⁹² The Seventh Circuit en banc held that EPA failed to produce substantial evidence that the wetland in question had an affect on interstate commerce, but upheld the Agency's regulations and the use of migratory birds to assert jurisdiction. "After April showers not every temporary wet spot necessarily becomes subject to government control," the court declared.⁹³ Consequently, the court ruled that the federal government must document the use of the land in question by migratory birds or establish some other connection to interstate commerce.⁹⁴

For Judge Woods, the reconciliation of SWANCC with Hoffman Homes I and II posed no problem. She relied on the en banc opinion for documentation of the aggregated effects if isolated wetlands were destroyed. She found the destruction of the wetlands would lead to the destruction of waterfowl, whose destruction turn would destroy sizeable hunting and bird-watching businesses dependant on their existence.⁹⁵

Upon further inspection, though, the reconciliation of the wetlands provision or the migratory bird rule with Lopez is far from easy. The first problem is that the Fourth Circuit in Wilson and various commentators make considerable sense in reading the wetlands provision as inconsistent with the Court's framework in Lopez.⁹⁶ The mere possibility that some migratory birds might visit some accumulated water hardly seems any less attenuated a nexus to interstate commerce than were the government's asserted connections between interstate commerce and the gender-based private violence targeted in the VAWA, the gun restrictions litigated in Lopez, and the private, owner-occupied residence at issue in Jones. Put slightly differently, at least the five present Justices who consistently have joined the majorities in all of the federalism cases over the past five years, regardless of the context,⁹⁷ seem disposed not to give the federal government the benefit of any doubt in establishing a credible connection between interstate commerce and the regulated activity in SWANCC. Isolated wetlands seem much more analogous to the local schools in Lopez, the gender-related private violence in Morrison, and the private residence in Jones than to any of the circumstances in which the Court has aggregated the impact of nonregulation of some commercial activity on interstate commerce.⁹⁸ In those cases, the Court ultimately rejected the possibility of proof existing of a credible nexus between the regulated activity and interstate commerce. If the Court does not reach a similar conclusion in SWANCC, it seems likely that at the very least it would require, as the Seventh Circuit en banc did in Hoffman Homes II, proof that [30 ELR 10988] the isolated wetland at the center of the dispute in the case was in fact frequented by migratory birds to such an extent that its destruction, along with the destruction of all other similar wetlands, could produce a magnitude of harm sufficient to substantially affect interstate commerce.

The ultimate fate of the migratory bird rule is likely to follow a similar path as that of the wetlands provision in that the former conceivably could depend as well on proof of the nexus between the regulated activity and interstate commerce. More precisely, the Court's assessment of the rule's legitimacy will likely depend on its satisfaction with the empirical support for Judge Wood's calculation of the likely aggregated harm from the destruction of the isolated wetland in SWANCC.⁹⁹ To be sure, if there were a hook for EPA and the Corps to link the migratory bird rule to the scope of Congress' power to regulate interstate commerce as clarified in Lopez, Judge Wood found it. The problem is, however, that the nexus to interstate commerce Judge Wood identified in SWANCC is by no means direct. The isolated wetland in SWANCC is at least a few steps removed from interstate commerce. First, the isolated wetland, by definition, lacks any bearing on its own to interstate commerce. Second, the migratory birds which do occasionally alight on the isolated wetland are not regarded in and of themselves as having anything to do with interstate commerce. Third, Judge Wood does not say (and it is not clear from the record) that there is any hunting, trapping, or bird-watching business related to the migration of the birds onto the specific isolated wetland in SWANCC. Thus, it is not until other steps are taken—the actual migration of the birds onto the parcel of land and the actual existence of some commercial businesses that are genuinely linked to the property—that any bearing on interstate commerce can begin to be aggregated. There is, in other words, more than a little attenuation in the aggregation of effects undertaken (but glossed over) by Judge Woods in her opinion.

Before one hastens to conclude the migratory bird is unconstitutional, two other issues have to be considered. The first is that the regulated activity—the destruction of isolated wetlands frequented by migratory birds—is focused on a shared resource, migratory birds. At least since the beginning of the 20th century, shared resources have been the province of the federal government rather than the states to regulate. Moreover, the term "isolated wetlands" is misleading. The wetlands covered by the migratory bird rule are isolated only from the perspective of the property owner. The wetlands are not necessarily isolated from other perspectives. Even though there may not be any hunting or bird-watching business connected to a particular isolated wetland, the latter property sustains the birds that the hunters eventually do hunt or the bird-watchers observe elsewhere. The ecology of bird migration is such that the effects of the demolition of a little habitat, i.e., something proven to be a habitat, are likely, if aggregated, to be quite substantial on hunting and bird-watching industries.

The problem that the Seventh Circuit faced in SWANCC is arguably the challenge left undecided by the Court in Morrison. Given the Court's recognition in Morrison that the Commerce Clause does not absolutely prohibit congressional regulation of some noneconomic or noncommercial activity,¹⁰⁰ the remaining challenge is to figure out how does one establish the requisite link between interstate commerce and a noncommercial activity that the federal government is trying to regulate.¹⁰¹ In other words, the challenge is one of proof. A regulation that is based on proof of the likely damages resulting from the general destruction of isolated wetlands is unlikely to satisfy most Justices, because it still rests on something they are likely to regard as ultimately speculative—whether the isolated wetland in the case is one actually frequented by migratory birds and hunters, trappers, or bird-watchers. SWANCC, in other words, provides the Court with a chance to clarify precisely the burden of proof federal regulators must satisfy in order to establish the requisite link between a regulated noneconomic activity and interstate commerce.¹⁰²

The Relevance of Other Congressional Powers

Even if the Court were to strike down the migratory bird rule or remand SWANCC for further fact-finding, its decision would not necessarily signal a revolutionary change in federal environmental regulation. For one thing, the Court has emphasized repeatedly in all of its recent federalism decisions, [30 ELR 10989] beginning with Lopez,¹⁰³ that there is nothing revolutionary or unusual about its approach to the Commerce Clause and that its recent Commerce Clause opinions comport with and are grounded in the Court's decisions,¹⁰⁴ including the Court's decisions establishing the constitutional foundations of the New Deal.¹⁰⁵ One sign of a revolutionary change in constitutional law is the overruling or dismantlement of long-standing precedent, but the Court has not overruled any of its precedents on the scope of Congress' power, under the Commerce Clause, to regulate private activity. Only one Justice—Justice Thomas—has even called for a wholesale review of the Court's Commerce Clause opinions, but no other Justices have joined or signaled any support for his entreaty.

Moreover, the federal laws struck down by the Court in recent federalism cases were quite poorly or negligently drafted. In Lopez, Congress failed to include a jurisdictional statement in the statute or even support the statute with any congressional findings¹⁰⁶; and in Kimel and Morrison, Congress passed laws applying uniformly throughout the nation but without appropriate congressional findings supporting uniform application.¹⁰⁷ In still other cases, Congress directly challenged the Court's own authority or ignored "well-settled" principles of federalism.¹⁰⁸ In City of Boerne¹⁰⁹ and Dickerson,¹¹⁰ the Court struck down statutes whose explicit purposes were to overrule prior decisions of the Court. In Morrison, Congress tried to use its § 5 authority to regulate private action, even though the Court, dating as far back as 1883,¹¹¹ had consistently declared that the Fourteenth Amendment applied strictly to state action.¹¹² Under such circumstances, it is not terribly surprising to find that the Court was hostile, especially given its domination in recent years by justices who have professed to take federalism values seriously.

Even in those cases in which the Court appears to be articulating or enforcing more rigorous standards than it has before, as in its recent Eleventh Amendment pronouncements, it is not clear that the outcomes necessarily dictate a revolutionary change in constitutional or environmental law.¹¹³ The primary concern in all of those cases has been the protection of state sovereignty, but the Court itself has recognized that Congress has powers, besides its Commerce Clause and § 5 authorities, that enable it to regulate the states even as states. Moreover, these same powers are available to Congress, under appropriate circumstances, to enact regulations of virtually all of the activity precluded by recent federalism decisions.

One important source of congressional authority is the treaty power.¹¹⁴ Congress has broad powers to make treaties with foreign nations on matters of international concern. Thus, the Court in a famous opinion by Justice Oliver Wendell Holmes in Missouri v. Holland¹¹⁵ upheld a treaty restricting the hunting of migratory birds. The Court held, however, that even if Congress' power under the Commerce Clause did not extend to the subject of migratory birds,¹¹⁶ a treaty on the subject was still a proper basis for implementing federal legislation.

At least in some parts of the country, migratory birds are unquestionably a resource shared by the United States and its neighboring countries. As such, they constitute an appropriate subject of international treaties. Hence, the federal government could use its treaty power to bolster the protections of wetlands frequented by migratory birds. Indeed, Judge Wood in SWANCC relied on Missouri as an additional authority for the necessity of extending federal jurisdiction over wetlands to protect migratory birds.¹¹⁷

Another important source of congressional authority is the spending clause.¹¹⁸ The Constitution authorizes Congress to spend money in pursuit of the public interest. The Supreme Court has generally deferred to Congress in determining where that public interest lies.¹¹⁹ Moreover, in the course of upholding a federal program that withheld a percentage of otherwise available federal highway funds from states that failed to adopt a 21-year-old minimum drinking age, the Court in South Dakota v. Dole¹²⁰ suggested that any use of the spending power was subject to four restrictions: first, "the exercise of the spending power must be in pursuit of the 'general welfare'"; second, "our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs'"; third, "other constitutional provisions may prohibit an independent bar to the conditional grant of federal funds"; and fourth, a federal statute must make unmistakably clear to states that their receipt of funds is subject to specified conditions or else courts will not treat the statutes as imposing those conditions.¹²¹ In short, a state may consent to give up some of its autonomy or sovereignty in exchange for federal dollars as long as Congress has defined the conditions for doing so clearly and a state does so voluntarily. Thus, there is no doubt that, just as Congress has used its spending power to induce states to adopt laws to protect their coastal [30 ELR 10990] resources¹²² and to mandate inspection of exhaust emission controls on automobiles,¹²³ Congress could use its spending power to allow states to receive federal money in exchange for the adoption of a federal standard restricting the destruction of wetlands broadly defined.

A third source of federal authority derives from the property clause of Article IV, which provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."¹²⁴ By virtue of this power, Congress has broad discretion in protecting the lands owned or acquired by the federal government, including but not limited to wilderness lands, mountains, national forests, and coastal regions.¹²⁵

Within the past year, a serious conflict has arisen between President Clinton and congressional leaders over the proper interpretation of an almost 100-year-old statute enacted by Congress pursuant to its property clause power, the Antiquities Act of 1906.¹²⁶ The conflict centers on the legitimacy of President Clinton's claim that the Act authorizes him unilaterally to declare federal lands national landmarks. The language on which he has based this claim is set forth in § 2 of the Act, which in pertinent part empowers the President,

in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon lands owned or controlled by the Government of the United States to be national monuments, and may reserve as part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects protected.¹²⁷

Based on his reading of this language, President Clinton has already issued executive orders that have declared more than four million acres of federal land as national landmarks.¹²⁸ Although other presidents—including Teddy Roosevelt, Woodrow Wilson, and Jimmy Carter—have claimed the same authority by virtue of the Act,¹²⁹ several leading members of Congress have challenged President Clinton's reading of the statute. As of the end of the summer of 2000, both chambers of Congress were contemplating statutes that would, at the very least, revise the Antiquities Act to clarify that the decisionmaking on which public land should be declared a national monument could not be made unilaterally by the president but instead must include both Congress and the public.¹³⁰ While it is clear that these revisions, if enacted, would be constitutional, it is far from clear that if passed by Congress any of these statutes would survive a presidential veto or if Congress could override a veto of any of these statutes. Hence, there is a substantial likelihood that the dispute over the proper construction of presidential authority under the Antiquities Act of 1906 will depend on the outcome of the 2000 presidential election. The next president will quite likely have considerable influence over the fates not just of the executive prerogative claimed by President Clinton but also millions of acres of federal land.¹³¹

[30 ELR 10991]

Conclusion

The Supreme Court's federalism decisions over the past five years do not necessarily signal an impending revolution in environmental law. Nor does it necessarily follow from the Court's agreement in SWANCC to hear a constitutional challenge to the migratory bird rule that the Court is preparing an assault on the foundations of the modern environmental protection movement.

Instead, the Court's recent federalism decisions signal, in all likelihood, some long, overdue fine-tuning of Congress' exercises of both its Commerce Clause power to regulate private activity (particularly noncommercial, noneconomic activity), state action, or purely local activity and its authority under § 5 of the Fourteenth Amendment to regulate private action. First, the Court has clarified that congressional statutes need jurisdictional statements, i.e., they need to indicate the sources of the authority for the legislation in question. Second, every congressional statute needs to be predicated on extensive records of credible congressional findings. Third, Congress may not use its authority under § 5 of the Fourteenth Amendment to regulate private activity. Fourth, Congress may not use its Commerce Clause power to coerce, compel, mandate, penalize, or force the states to consent to the implementation or enforcement of any federal policy with which they do not agree. Fifth, Congress' authority under the Commerce Clause is primarily restricted to the regulation of the instrumentalities and channels of interstate commerce and to the regulation of economic or commercial activities the aggregated effects of which substantially affect interstate commerce. Sixth, Congress may not use any of its powers to displace or override Supreme Court decisions with which it disagrees. Seventh, Congress does retain limited ability under the Commerce Clause to regulate the states not as states but as the owners or purchasers of articles of commerce otherwise regulated by the federal government. Lastly, the Court's recent federalism decisions do not foreclose Congress from using other powers to enact the regulations it has been barred from passing under its Commerce Clause and § 5 authorities. Principal among these other powers are Congress' authorities deriving from its treaty and spending powers and the property clause.

The Seventh Circuit's decision in SWANCC, now pending on appeal before the Supreme Court, provides the Court with a critical opportunity to reconcile its recent federalism opinions, including the principles enunciated in them, with one of the most controversial environmental policies of the last decade—the migratory bird rule. The reconciliation is not by any means implausible. The strongest argument for supporting the rule is that the aggregated effects of the destruction of isolated wetlands frequented by migratory birds could substantially impair interstate commerce. If this argument were not to prevail, it will be because, in all likelihood, at least the five Justices who have been in the majorities in all of the recent federalism opinions will not have been satisfied with the federal government's fulfillment of its burden in SWANCC to establish the requisite nexus between the regulated property and interstate commerce. Moreover, SWANCC provides the Court with an important opportunity to clarify whether environmental regulations, such as the migratory bird rule, are properly regarded as commercial or economic in nature because of the regulated activity rather than the objective of the law. Perhaps most importantly, SWANCC raises the possibility of the Court's reaffirming or extending its basic reluctance to treat environmental law as dealing with a context or subject that poses different or unusual concerns from other cases in which federalism issues arise. Ironically, if the Court were to maintain its refusal to treat environmental issues any differently than it does others implicating federalism, then the basic foundations of federal environmental law will not be any less stable after SWANCC than before.

1. See Dickerson v. United States, 120 S. Ct. 2326 (2000) (invalidating congressional attempt to overturn the Miranda safeguards by a statute enacted pursuant to § 5 of the Fourteenth Amendment); United States v. Morrison, 120 S. Ct. 1740 (2000) (striking down civil remedy provision of the Violence Against Women Act for violating both the U.S. Commerce Clause and § 5 of the Fourteenth Amendment); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) (holding the abrogation of state sovereign immunity by the Age Discrimination in Employment Act exceeded Congress' authority under § 5 of the Fourteenth Amendment).

2. See Jones v. United States, 120 S. Ct. 1904 (2000) (in which the Court unanimously construed narrowly a federal arson law to avoid a broader reading that would have required the Court to strike the law down for exceeding Congress' authority to regulate interstate commerce). See also Reno v. Condon, 120 S. Ct. 666 (2000) (upholding unanimously that the Court's prior decisions did not limit Congress' ability to regulate the commercial vending of private data by the states).

3. Besides the three laws struck down in the 1999 Term, see Alden v. Maine, 119 S. Ct. 2240 (1999) (holding that Congress may not abrogate state sovereign immunity by authorizing private actions for money damages against nonconsenting states in their own courts); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999) (holding impermissible Congress' efforts to salvage an article I enactment attempting to overcome Eleventh Amendment immunity by characterizing the legislation as a § 5 enactment, particularly where Congress was not legislating to prevent or remedy a proven pattern of Fourteenth Amendment violations); College Sav. Bank v. Florida Prepaid Postsecondary Educ, Expense Bd., 119 S. Ct. 2219 (2000) (trademark statute could not be justified as exercise of § 5 power); Printz v. United States, 521 U.S. 898 (1997) (holding unconstitutional the interim provisions of the Brady Handgun Violence Prevention Act commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks); City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act for exceeding Congress' authority under § 5 of the Fourteenth Amendment); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (holding, for the first time, that the Congress has no authority to override Eleventh Amendment immunity as part of an otherwise valid exercise of an article I power, such as the power to regulate interstate commerce); Lopez v. United States, 514 U.S. 549 (1995) (striking down Gun Free School Zones Act of 1990 for exceeding Congress' power to regulate interstate commerce).

4. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000).

5. EPA regulations define wetlands as "those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." 40 C.F.R. § 4(j); 33 C.F.R. § 328.3(b).

6. An isolated wetland is one that is not adjacent to any navigable waters.

7. See 33 C.F.R. § 328(a)(3); 7 C.F.R. § 752 (migratory bird rule) (clarifying the extension of Corps' jurisdiction over wetlands that "are or would be used by migratory birds").

8. See 40 C.F.R. § 230.3(s)(3) (EPA's regulation defining federal jurisdiction over waters of the United States as including waters whose destruction would or "could affect" interstate commerce); 33 C.F.R. § 328.3(a)(3) (Corps regulation clarifying extension of federal jurisdiction over waters of the United States as including any waters whose destruction "could affect" interstate commerce).

9. See, e.g., Oliver A. Houck & Michael Rolland. Federalism in Wetland Regulations: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 MD. L. REV. 1242, 1243 (1995) ("Wetland regulations may be the most controversial issue in environmental law. It pits America'smost biologically-productive and most rapidly-diminishing ecosystems against rights of private ownership and property development in more than 10,000 individual permit decisions a year . . . .").

10. U.S. CONST. art. 1, § 8, cl. 3.

11. 42 U.S.C. §§ 7401-7671 q. ELR STAT. CAA §§ 101-618.

12. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

13. 452 U.S. 264, 11 ELR 20569 (1981).

14. The act in question was the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C. § 1201 et seq. (1976 ed., Supp. III).

15. Hodel, 452 U.S. at 275, 11 ELR at 20571-72 (citation omitted).

16. Id. at 280, 11 ELR at 20573.

17. Id.

18. Id. at 284, 11 ELR at 20573.

19. 514 U.S. 519 (1995).

20. The other four Justices were Justices O'Connor, Scalia, Kennedy, and Thomas.

21. Id. at 553 (citation omitted).

22. Id. (citation omitted).

23. Id. at 557.

24. Id.

25. Id. at 559.

26. Id.

27. Id. at 560.

28. Id. at 551.

29. Id. at 563.

30. Id. at 569 (Kennedy, J., concurring). Moreover, in a separate concurrence, Justice Thomas urged his colleagues to be prepared in some future case to reconsider the Court's "substantial effects" test employed in Commerce Clause cases. Id. at 586 (Thomas, J., concurring). He explained that the test allowed Congress to regulate far more than the Framers ever intended for it to be able to do. In his view, "the Constitution not only uses the word 'commerce' in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that 'substantially affect' interstate commerce." Id. at 588. "The power we have accorded Congress [in our Commerce Clause juris-prudence] has swallowed Art. 1, section 8." Id.

31. 120 S. Ct. 1740 (2000).

32. Id. at 1749.

33. Id.

34. Id. at 1751.

35. Id. at 1753.

36. Id.

37. 120 S. Ct. 1904 (2000).

38. The law in question was 18 U.S.C. § 844(i) (1994 ed., Supp. IV).

39. Jones, 120 S. Ct. at 1908 (citation omitted).

40. Id. at 1910.

41. Id. at 1911.

42. Id.

43. Id. at 1912.

44. Id.

45. Id. In a separate concurrence joined by Justice Scalia, Justice Thomas explained that in joining the Court's opinion he did not intend to "express" any "view on the question whether the federal arson statute . . . is constitutional in its application to all buildings used for noncommercial activities." Id. at 1913.

46. See United States v. Lopez, 514 U.S. 519, 560-61 (1995) ("The pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.").

47. The Eleventh Amendment provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI.

48. See New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992) (holding that Congress could not coerce states to establish programs for disposing of low-level radioactive waste, at penalty of "taking title" to the waste if they failed to enact such a program).

49. See Printz v. United States, 521 U.S. 898 (1997) (holding that a federal requirement that local law enforcement officers conduct background checks on prospective gun buyers violated basic principles of federalism and separation of powers).

50. See Alden v. Maine, 119 S. Ct. 2240 (1999) (holding that the Eleventh Amendment bars Congress from abrogating states' immunity from private suits in their own courts).

51. 120 S. Ct. 666 (2000).

52. The Court was especially concerned with reconciling its decision in Condon with its prior decisions in New York, 505 U.S. at 144, 22 ELR at 21082, and Printz, 521 U.S. at 898. New York is especially notable for having partially overruled Garcia v. San Antonio Sch. Dist., 469 U.S. 528 (1985), which in turn had overruled National League of Cities v. Usury, 426 U.S. 833 (1976). The opinion for the Court in National League of Cities, written by then-Associate Justice Rehnquist, is generally regarded as reflecting some of the current Chief Justice's most fervently held views regarding the constitutional limitations on federal interference with state sovereignty. National League of Cities had also overruled Maryland v. Wirtz, 392 U.S. 183 (1968). The critical issue debated in all these cases had to do with the degree to which state sovereignty, compromised in those cases by the provisions of the Federal Labor Standards Act applicable to overtime pay, is more adequately "protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Garcia, 469 U.S. at 551.

53. Condon, 120 S. Ct. at 671.

54. Id. at 672.

55. Id.

56. 120 S. Ct. 631 (2000).

57. Justice O'Connor noted that the regulation of age discrimination among employers in general, including the states, was a valid exercise of Congress' Commerce Clause power. However, she added that the Commerce Clause power did not include the authority to abrogate sovereign immunity: "[Congress'] powers under Article I [do] not include the power to subject States to suit at the hands of private individuals. [Accordingly,] the private petitioner in these cases may maintain their [suits] against the States of Alabama and Florida if, and only if, the ADEA is appropriate under [§ 5 of the Fourteenth Amendment]." Id. at 643. See Stephen R. McAllister & Robert L. Glicksman, State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism, 29 ELR 10665, 10674 (Nov. 1999). One clear implication, derived from this line of reasoning grounded in Seminole Tribe and its progeny, is that any provisions of Commerce Clause enactments, such as the Clean Water Act (CWA) and CERCLA, authorizing citizen suits directly against states are no longer constitutional. See National Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 27 ELR 20173 (9th Cir. 1996) (holding, inter alia, that the Eleventh Amendment prohibits Congress from using its Commerce Clause power to authorize enforcement actions brought directly against states pursuant to the citizen suit provision of the CWA). In the latter case, the Ninth Circuit was careful to point out that while Seminole Tribe clearly precluded damage actions brought by citizen groups directly against state entities, citizen groups could bring lawsuits against particular state officials, consistent with the Court's much earlier decision in Ex Parte Young, 209 U.S. 123 (1908), if the organizations sought only prospective injunctive relief.

58. 117 S. Ct. 2157 (1997).

59. In City of Boerne, the Court 5 to 4—indeed, the same five-member majority as in Morrison, Lopez, and Kimmel—struck down the Religious Freedom Restoration Act of 1993. The Act was an explicit attempt by Congress to require the standard for protecting free exercise of religion interests displaced by the Court in an earlier decision, Employment Div. v. Smith, 494 U.S. 872 (1990). The statute had two fatal flaws. First, it violated separation of powers by attempting to overrule by statute a constitutional ruling of the Court. Second, it exceeded the scope of authority that Congress had under § 5 of the Fourteenth Amendment to enact appropriate legislation to protect Fourteenth Amendment guarantees. Writing for the majority, Justice Kennedy acknowledged that "legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into 'legislative spheres of autonomy previously reserved to the States.'" City of Boerne, 117 S. Ct. at 2163 (citation omitted). Nevertheless, there are limits to such power. In order for a statute enacted pursuant to § 5 to pass constitutional muster, Justice Kennedy explained, "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect." Id. at 2164.

60. Kimel, 120 S. Ct. at 644.

61. Id. at 645.

62. Id. at 647.

63. Id. at 648.

64. Id. at 650.

65. 120 S. Ct. 2326 (2000).

66. 384 U.S. 436 (1966).

67. Dickerson, 120 S. Ct. at 2332 (citations omitted).

68. See supra notes 33-36 and accompanying text.

69. Morrison, 120 S. Ct. at 1758.

70. Id. at 1759.

71. See, e.g., Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ELR 10681 (Sept. 2000); Symposium, Urban Environmental Justice, 21 FORDHAM URB. L.J. 425 (1994).

72. See Washington v. Davis, 426 U.S. 229 (1976).

73. See, e.g., Rozar v. Mullis, 85 F.3d 556, 26 ELR 21472 (11th Cir. 1996) (finding that plaintiffs had failed to meet their burden of proving government's intent to discriminate in locating a landfill).

74. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

75. At least one scholar has reached similar conclusions about the principles that should be derived from the Court's recent § 5 opinions. See Ruth Colker, The Section Five Quagmire, 47 UCLA L. REV. 653 (2000). Professor Colker also reads the case law as indicating that Congress may resort to § 5 to enact enforcement legislation to protect individual rights or interests only to the extent that the Court has recognized such rights or interests protected by the Due Process Clause. Id. at 669-76. Another scholar has also recently defended Congress' recourse to § 5 in order to enact appropriate legislation to protect the due process interests of citizens threatened or deprived by the states. See Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399 (2000). For instance, Congress could pass appropriate legislation to protect citizens' health and safety interests (which presumably are liberty interests protected by the Due Process Clause of the Fourteenth Amendment) violated or infringed by the states' failure to pass minimally adequate environmental safeguards or to provide adequate enforcement of existing environmental safeguards.

76. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

77. Id.

78. See 40 C.F.R. § 230.3(s)(3) (EPA's construction of "waters of the United States" as granting junsdiction over waters whose destruction would or "could affect" interstate commerce); 33 C.F.R. § 328.3(a)(3) (Corps regulation construing grant of jurisdiction over waters whose destruction "could affect" interstate commerce). See also Craig N. Johnston, 1999—The Year in Review, 30 ELR 10173, 10176 (Mar. 2000).

79. See 7 C.F.R. § 752 (extending jurisdiction over wetlands that "are or would be used by migratory birds"); see also 33 C.F.R. § 328(a)(3).

80. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985), the Court upheld Corps regulations that included wetlands adjacent to navigable waters as properly within the ambit of § 404, even though, in that case, there was no evidence that those wetlands were periodically inundated by flooding of the neighboring water body. In Riverside Bayview, the Court considered only the viability of challenges to the regulations based on the Takings Clause; the Court did not address the constitutionality of regulations, like the one at issue in SWANCC, that extend Corps jurisdiction over property that is not adjacent to navigable waters.

81. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000).

82. Id.

83. Id. at 849, 30 ELR at 20162.

84. Id.

85. Id. at 850, 30 ELR at 20162.

86. 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

87. 33 C.F.R. § 328(a)(3).

88. In a concurring opinion, Judge Payne criticized, as inconsistent with Riverside Bayview, the portion of the majority opinion that required a surface connection between a water of the United States and a wetland in order for the wetland to be considered "adjacent" to a navigable waterway. Wilson, 133 F.3d at 266, 266-69, 28 ELR at 20306 (Payne, J., concurring).

89. SWANNC, 191 F.3d at 852, 30 ELR at 20163.

90. 961 F.2d 1310, 22 ELR 21148, vacated sub nom. Hoffman Group, Inc. v. EPA, 975 F.2d 1554, 22 ELR 21547 (7th Cir. 1992).

91. Id. at 1321, 22 ELR at 21153-54.

92. 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

93. Id. at 262, 23 ELR at 21141.

94. Two other circuit courts have upheld broad EPA and Corps constructions of the geohydrological coverage of § 404. See Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 516 U.S. 955, 26 ELR 20001 (1995) (holding isolated, man-made wetlands that are dry much of the year may be regulated under § 404); United States v. Banks, 115 F.3d 916, 28 ELR 20060 (11th Cir. 1997), cert. denied, 118 S. Ct. 852 (1998) (holding a parcel of land connected to navigable waterways primarily by groundwater to be within the coverage of § 404).

95. SWANCC, 191 F.3d at 850-51, 30 ELR at 20162 (citing statistics on numbers of people traveling between states to hunt, trap, and observe migratory birds).

96. See Timothy S. Bishop et al., One for the Birds: The Corps of Engineers' "Migratory Bird Rule," 30 ELR 10633 (Aug. 2000); Richard Lazarus, Corps Slips on Lopez, FWS Wins, ENVTL. F., Mar./Apr. 1998, at 8 (noting that the Corps' wetlands regulations were "clearly" constitutional prior to Lopez, but unconstitutional afterwards). See also Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetlands Regulation, 29 ENVTL. L. 1 (1999); David A. Linehan, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365 (1998).

97. See Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703 (2000) (conducting an empirical analysis of the votes of individual Justices who have decided environmental law cases before the Court during the past three decades and concluding that the Court's apparent indifference to or apathy about environmental law issues derives from the Justices' view of environmental protection as merely an incidental factual context for the presentation of federalism issues).

98. See, e.g., Perez v. United States, 402 U.S. 146 (1971) (holding that the Commerce Clause authorized a federal statute that makes it a crime to engage in loan sharking at a local level); Heart of Atlanta v. United States, 379 U.S. 241 (1964) (upholding Congress' authority under the Commerce Clause to enact legislation prohibiting racial discrimination in "any inn, hotel, motel, or other establishment which provides lodging to transient guests" if its operations "affect commerce"); Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress had the authority under the Commerce Clause to control a farmer's production of wheat for home consumption because the cumulative effect of home consumption of wheat by many farmers might reasonably be thought to alter the supply-and-demand relationships of the interstate commodity market).

99. At least one vote on the constitutionality of the migratory bird rule is already known. In his dissent to the Court's refusal to grant certiorari in an earlier case raising the constitutionality of the migratory bird rule, Justice Thomas warned, "The point of Lopez was to explain that the activity on the land to be regulated must substantially affect interstate commerce before Congress can regulate it pursuant to its Commerce Clause power." Cargill, Inc. v. United States, 516 U.S. 955, 958, 26 ELR 20001, 20002 (1995) (Thomas. J., dissenting from denial of certiorari). The migratory bird rule, he suggested, could not meet this test given the fact "that substantial interstate commerce depends on the continued existence of migratory birds does not give the Corps carte blanche authority to regulate every property migratory birds could use as a habitat." Id.

100. See Morrison, 120 S. Ct. at 1751 ("While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide [Commerce Clause] cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.").

101. Of course, a great deal depends on the Court's characterization of the regulated activity. The statute purports to protect migratory birds and the isolated wetlands frequented by them, but the actual activity that is the subject of the migratory bird rule is commercial, as is in fact the focus with much of environmental law which governs industrial activity producing pollution. If, however, the Court were to characterize the migratory bird rule in terms of its purpose rather than the activities it seeks to prohibit, the regulation could be construed as noncommercial. If the Court were to follow its traditional analysis in Commerce Clause cases, its focus will be on the nexus between the regulated activity—the commercial destruction of isolated wetlands—and interstate commerce.

102. There are two things that the Court in SWANCC is thus likely to clarify. First, the Court could conceivably clarify that the federal government bears the burden of proof to demonstrate the causative link between the regulated activity and interstate commerce. Second, the Court could hold further that the federal government failed to satisfy its burden in SWANCC. There is nothing in the record or Judge Wood's opinion in SWANCC establishing (as opposed to assuming) that the particular isolated wetland in that case had a causative link to interstate commerce. In other words, the government did not prove that the isolated wetland in SWANCC was frequented by migratory birds to such an extent that the federal government could credibly assert that the destruction of that particular wetland and other similar wetlands could produce the harmful effects on interstate commerce claimed by both the federal government and Judge Wood. If the Court were to reach these conclusions, they would not be dissimilar from the approach taken by the Court in Takings Clause cases in which it has ruled that a local government "must make some sort of individualized determination that the required dedication [of private property for some public purpose] is related both in nature and extent to the impact of the proposed development [of the property]." Dolan v. City of Tigard, 512 U.S. 374, 392, 24 ELR 21083, 21087 (1994).

103. See Lopez, 514 U.S. at 551-59.

104. See Morrison, 120 S. Ct. at 1750.

105. See supra note 98.

106. See supra note 29.

107. See supra notes 64 and 70.

108. Morrison, 120 S. Ct. at 1755.

109. See supra note 58.

110. See supra note 65 and accompanying text.

111. See The Civil Rights Cases, 109 U.S. 3 (1883).

112. See Morrison, 120 S. Ct. at 1755-56.

113. See supra notes 46-50 and accompanying text.

114. U.S. CONST. art. II, § 2. cl. 2. See also id., art. VI. cl. 2 ("This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the Land . . . .").

115. 252 U.S. 416 (1920).

116. There is little or no question that Congress may regulate the hunting of migratory birds on at least wetlands adjacent to navigable waters. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124-31, 16 ELR 20086-88 (1985). The question in SWANCC is basically whether the federal government may extend its jurisdiction over the same subject even further, onto isolated wetlands.

117. SWANCC, 191 F.3d at 852, 30 ELR at 20162 (relying on Missouri in rejecting the argument that migratory birds are "a matter of local concern only. That argument is refuted by the numerous international treaties and conventions designed to protect migratory birds. . . .") (citations omitted).

118. U.S. CONST. art. I, § 8, cl. 1.

119. See, e.g., South Dakota v. Dole, 483 U.S. 203, 207 (1987) ("In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.").

120. 483 U.S. 203, 207 (1987).

121. Id. at 207-08.

122. See 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319 (Coastal Zone Management Act).

123. See 42 U.S.C. § 7506(a), ELR STAT. CAA § 176(a).

124. U.S. CONST. art. IV, § 3, cl. 2.

125. The leading case on the scope of congressional power under the property clause is Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976) Kleppe involved the Wild Free-Roaming Horses and Burros Act, which protects all unbranded horses and burros on public lands from capture. If the animals stray onto private land, the landowner may require the government to retrieve them. In Kleppe, state game wardens entered public lands to remove wild horses. The state argued that the statute could not be supported by the property clause, which, in its view, granted Congress only the powers to dispose of and to protect federal land, not things, such as animals, on the land. The Court rejected a narrow reading of the property clause. According to the Court, the clause is not limited to rules regarding disposal, use, and protection of federal lands. Rather, Congress possesses the powers of both a proprietor and a legislature over the public domain. With respect to public lands, Congress has the full regulatory power which the state has with respect to its own lands. Thus, Congress may regulate for any public purpose concerning activities on public lands.

It is less clear how much regulatory power the property clause gives Congress over private lands which adjoin public lands. In one early case, the Court held that Congress had the power to order the removal of a fence built on private land which limited access to public land. Camfield v. United States, 167 U.S. 518 (1897). The Court held that the fence constituted a nuisance and that Congress had the power to abate this nuisance. The Court remarked more generally that Congress has the power to protect the public lands without being required to seek the aid of state legislatures. Following the logic of these remarks, some lower courts have read the property clause quite broadly to allow Congress to prevent any activity on private lands that would interfere with Congress' goals respecting the public lands. See, e.g., Minnesota ex rel. Alexander v. Block, 660 F.2d 1240, 11 ELR 21033 (8th Cir. 1981); United States v. Brown, 552 F.2d 817, 7 ELR 20366 (8th Cir. 1977), cert. denied, Brown v. United States, 431 U.S. 949 (1977). Thus, if Congress were to set aside public lands for quiet, peaceful enjoyment, it may prevent activities on adjoining private lands that would produce excessive noise or otherwise interfere with Congress' preferred use of those public lands. Indeed, President Clinton has recently claimed the authority unilaterally to prevent just such activities and more, based on his reading of the delegation made to the president in the Antiquities Act of 1906. See, e.g., Presidential Proclamation 7295 of Apr. 15, 2000. Establishment of the Giant Sequoia National Monument, 65 Fed. Reg. 24095-100 (Apr. 24, 2000). See also infra notes 127-31 and accompanying text.

The Supreme Court has held, however, that the congressional power over public lands is not necessarily exclusive. See California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1987) (holding that federal law did not preempt a state law requiring a permit for private mining on public lands).

126. Act of June 8, 1906, ch. 3060, 34 Stat. 225.

127. Id. § 431. Perhaps the most controversial portion of the section is contained in the very next sentences that follow the previously quoted portion of the section:

When such objects [designated as national landmarks or monuments] are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished by the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.

Id.

128. See David Foster, Monumental Acts Preserve Wilderness, CHI. TRIB., Aug. 29, 2000, at Cl.

129. See Charles Babbington & Joby Warrick, As Clock Ticks, Clinton Brews Flurry of Regulations, COM. APPEAL (Memphis), Aug. 27, 2000, at A14.

130. See, e.g., S.729 (bill to ensure that Congress and the public have the right to participate in the declaration of national monuments on federal land) (introduced by Sen. Larry Craig (R-Idaho)) (last major action, August 25, 2000, Senate preparation for floor): H.R. 4121 (amending the Antiquities Act of 1906 regarding the establishment by the president of certain national monuments) (introduced by Rep. Michael K. Simpson (R-Idaho) (last major action, April 5, 2000. House committee/subcommittee actions); H.R. 1487 (providing for public participation in the declaration of national monuments under the Act popularly known as the Antiquities Act of 1906) (introduced by Rep. James Hansen (R-Utah)) (last major action, March 28, 2000. Senate preparation for floor).

131. See, e.g., Babbington & Warrick, supra note 129, at A14 (noting that Republican Vice-Presidential nominee Dick Cheney "raised the possibility that some of the new monuments created by Clinton could be rescinded by George W. Bush's administration").