The Curious Flight of the Migratory Bird Rule

Michael J. Gerhardt

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

[31 ELR 11079]

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

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

SWANCC

The best place to start in analyzing the significance of a Supreme Court decision is, of course, with the decision itself, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC).⁸ SWANCC involved the attempt of the Solid Waste Agency of Northern Cook County (SWANCC), a consortium of Illinois municipalities, to use a 533-acre area as a depository for municipal waste. As part of its plan, the consortium had applied to the Corps for a permit under § 404 of the Clean Water Act (CWA) to fill 17.6 acres of ponds and small lakes on the property. After the Corps denied the requested permit because migratory birds were using [31 ELR 11080] the ponds and lakes as a habitat, the consortium challenged the Corps' jurisdiction over those ponds and lakes.

The Seventh Circuit rejected the challenge.⁹ In an opinion by Judge Diane Wood, the appeals court held that the Corps had jurisdiction over the intrastate ponds and lakes at issue because (1) migratory birds were using those waters as a habitat, (2) destroying the habitat would reduce the population of migratory birds and substantially affect interstate commerce (because reducing the population of migratory birds would harm bird-watching and hunting businesses dependent on their existence), and (3) protecting the habitat was within the Congress' authority under the Commerce Clause. SWANCC petitioned for a writ of certiorari, and the Supreme Court granted the petition.¹⁰ The Supreme Court reversed the Seventh Circuit.

Writing for the five-member majority, Chief Justice William H. Rehnquist initially reviewed relevant statutory and regulatory provisions.¹¹ He recognized that the broad purpose of the CWA was to "restore and maintain . . . the Nation's waters,"¹² but explained the Court's finding that the term "navigable waters" constituted the basis for the Corps' jurisdiction under the Act and held that waters that are neither navigable themselves nor adjacent to navigable waters are simply not within the Corps' jurisdiction. Thus, in the majority's opinion, the Agency did not need any Corps' permit to fill in the lakes and ponds for its municipal waste depository.¹³

The Chief Justice distinguished the Court's earlier, unanimous opinion in United States v. Riverside Bayview Homes, Inc.,¹⁴ on the ground that the Corps had jurisdiction over the wetlands at issue in the latter case because the wetlandsabutted a navigable waterway, whereas the ponds at issue in SWANCC were not "adjacent to open water."¹⁵ To allow jurisdiction to extend to a non-navigable pond, the Court figured, would "read[] the term 'navigable' out of the statute."¹⁶

The Court further explained its reluctance to accept the EPA's arguments that Congress, in the 1977 Amendments to the CWA, was aware of the Corps' expansive definition of "navigable waters" and had acquiesced in that definition, by rejecting a House of Representatives' bill confining that term to waters that are "susceptible" to use for transporting interstate or foreign commerce and by adopting § 404(g), which specifically referred to "navigable waters. . . ."¹⁷

The Chief Justice also explained the Court's finding that the Corps' construction of its jurisdiction failed to satisfy the first prong of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.¹⁸ analysis, under which the Court defers to an agency's reasonable interpretation of an ambiguous statute. The Rule was, however, not entitled to such deference, because it "pushed the limit of congressional authority."¹⁹ The Chief Justice noted that the Court's "concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."²⁰ Citing his previous opinions for the Court in United States v. Morrison and United States v. Lopez, Chief Justice Rehnquist stated, "twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited."²¹ He elaborated that "permitting respondents to claim jurisdiction over ponds and mudflats falling within the [Rule] would result in a significant impingement of the States' traditional and primary power over land and water use."²²

For himself and three other Justices, Justice John P. Stevens dissented. His dissent challenged the Court's interpretation of the CWA and refusal to grant Chevron deference to the Corps' interpretation of it. The dissent examined the history of the definitions of the key statutory terms "navigable waters" and "waters of the United States"—the crucial jurisdictional terms of the CWA. Justice Stevens explained that, in the 1972 Act and the 1977 Amendments, Congress diverged from its traditional role of regulating discharges into the nation's waterways in order to protect their use as channels of commerce and focused instead on protecting the quality of waters for "esthetic, health, recreational and environmental uses."²³ Thus, Congress deleted the term "navigable" from the definition of "waters of the United States" and no longer required actual or potential navigability as a basis for the Corps' jurisdiction. In Justice Stevens' opinion, the Court, in its ruling in Riverside Bayview [31 ELR 11081] Homes, had recognized and approved Congress' acquiescence in the Corps' broad definition of its jurisdiction. And "once Congress crossed the legal watershed that separates the navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute's protection to those waters or wetlands that happen to lie near a navigable stream."²⁴

In addressing the Court's federalism argument, the dissenters noted that the Corps' interpretation of the Act does not encroach on the traditional state power over land use because environmental law does not mandate particular uses of land but requires only that the use of the land not unduly damage the national environment. The dissent then analyzed the Rule under the Lopez test, which outlines three categories of activity that Congress may regulate under its Commerce Clause power; and concluded that the activity in this case—discharge of fill into water—falls squarely within the third category: activities that "substantially affect" interstate commerce.²⁵ Moreover, Justice Stevens observed, "protection of migratory birds is a textbook example of a national problem," not a merely local issue.²⁶

The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer migratory birds) are widely dispersed and often borne by citizens living in other states. In such situations, described by economists as 'externalities,' federal regulation is both appropriate and necessary.²⁷

SWANCC's Impact on Statutory and Constitutional Doctrine

The significance of SWANCC can be assessed in terms of both what the Court did and did not do in the case. What the Court did not do was to effect any significant shift in, or endorse explicitly any direct challenges to, current statutory and constitutional doctrine. In particular, SWANCC is significant for at least four significant things that did not happen in the case. First, the Court deliberately refrained from deciding any constitutional issue. The Court's choice to resolve the case on statutory rather than constitutional grounds was a classic exercise of judicial restraint.²⁸ Second, the Court accepted without comment the nondelegation doctrine.²⁹ The problem in the case, from the majority's perspective, was not that Congress exceeded its authority in delegating certain authority to the Corps but rather that the Corps erred in construing the scope of its delegated authority.³⁰ Third, the Court did not question the propriety of basic Chevron deference.³¹ Rather than question Chevron deference itself, the Court found that the Rule violated the first prong of the Chevron test. This was hardly the first time the Court had found a federal agency had breached the first prong of Chevron³²; earlier in the same Term, the Court, in [31 ELR 11082] Food & Drug Administration v. Brown & Williamson Tobacco Corp.,³³ had invalidated a Food and Drug Administration (FDA) action as a breach of the first prong of the Chevron test.³⁴ Indeed, the refusal is linked in SWANCC, as it was in the Brown & Williamson case, with a reluctance to allow federal agencies to extend federal authority over areas that, in the majority's view, fall within traditional state domains.³⁵ Fourth, the Court did not question or overturn any statutory or constitutional precedents. In short, there is nothing in SWANCC that purports to be new or to reflect a conscious or deliberate departure from settled doctrine, and SWANCC can seemingly be read as a relatively routine application of existing jurisprudence.

This is, however, hardly the only plausible reading of SWANCC. A different, arguably more radical reading of SWANNC is possible. One could construe the ruling as recognizing either a new principle or an exception to Chevron deference—that if Congress intends for an agency to have the authority to operate at the outer limits of Congress' power then Congress must "indicate [it] intended that result."³⁶ There is little doubt that it will be difficult for Congress to satisfy this standard, for clarity is rarely a legislative strength, especially when the clarity is required to achieve extreme (and thus in all probability more controversial) objectives. In short, the only way for agencies to operate at the outermost limits of congressional authority (presumably defined by the Court) depends on the unlikely circumstance in which Congress expresses its legislative will clearly and boldly.³⁷

There are also serious implications posed by SWANCC for the future of Commerce Clause jurisprudence. There seems to be little, if any, doubt that if Congress ever were to pass a law employing similar means or seeking to achieve the same objective as the Rule that the Court would strike it down as violating the Commerce Clause.³⁸

Indeed, the opinion makes relatively clear the specific ground on which the Court would find the aforementioned law violates the Commerce Clause. Such a law would probably violate the third prong of the basic framework set forth in Lopez for evaluating the constitutionality of Commerce Clause enactments. According to the Lopez framework, Congress may regulate (1) a channel of interstate commerce (i.e., water), (2) an instrumentality of interstate commerce (i.e., a steamboat), or (3) activities that could substantially affect interstate commerce.³⁹ In Morrison, the Court indicated that not every kind of private activity could qualify as having the potential to substantially affect interstate commerce. The Court explained that the primary (if not only) kind of private activity that it regards the Commerce Clause as allowing Congress to aggregate, for the purpose of determining whether interstate commerce is substantially affected, is "economic."⁴⁰ In Morrison, the Court struck down the civil remedies provision of the Violence Against Women Act because the activity that it sought to regulate—gender-motivated violence—was

not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any non-economic 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.⁴¹

Accordingly, SWANCC leaves open a major question as to what kinds of private activity the Court will accept as qualifying as economic for Commerce Clause purposes. The dissent in SWANCC argued, for example, that the objective [31 ELR 11083] of the Rule was to regulate "the discharge of fill material into the Nation's waters" and that such activity was plainly "undertaken for economic reasons."⁴² The majority was skeptical, because the federal government had not previously defended the Rule on the basis of this rationale.⁴³ Merely because a law regulates commercial activity does not provide the law with the kind of economic basis that the Court will allow to be aggregated for Commerce Clause purposes, because what seems to matter primarily to the Court in post-Lopez Commerce Clause cases is whether the objective of the law rather than the means it adopts is economic. In Morrison and SWANCC, the Court seems to suggest that what matters for purposes of aggregation in Commerce Clause cases is whether the basic purpose of the law is economic, not whether some economic activity is the means to achieve a noneconomic objective (such as clean water or air). If the Court means the former, the obvious question is, to what extent does this understanding of the Commerce Clause pose problems for environmental regulations besides the Rule?

In my opinion, the answer is "not much." First, one should recall that aggregation is a relevant consideration under the third prong of Lopez, under which the Court is considering whether some activity bears a substantial relationship to interstate commerce.⁴⁴ It is entirely conceivable that the Court would accept that regulation of the nation's water and air is permissible under the Commerce Clause because air and water are channels of interstate commerce and, at least in the case of water, a commodity that is supposed to move through it. Lopez accepts regulation of instrumentalities of interstate commerce as fair game for congressional exercises of the Commerce Clause power. It is possible to stretch the analysis further to characterize both air and water as essential commodities for human existence and thus their protection makes a national economy possible. Without these commodities, we cease ultimately to exist as economic (or any other kind of live) actors. The latter construction admittedly seems strained, especially given the Court's apparent disdain in SWANCC for the government's post hoc justification of the Rule in economic terms.⁴⁵

Second, the application of the economic/noneconomic distinction might be more prospective than retroactive. The Court might be reluctant to use this distinction to reopen debate about long-standing laws.⁴⁶ Through this distinction the Court might be giving lower courts and government law-yers the means to justify relatively long-standing laws challenged under the Lopez framework and be prepared to defer to congressional and other judicial efforts to use these means to effectuate that purpose. For instance, this is one—albeit quite generous—way to construe the significance of the Court's refusal to grant certiorari in a case involving a question about the constitutionality of federal regulation of the small population of red wolves via the Endangered Species Act (ESA).⁴⁷ Thus, the most significant use of the economic/noneconomic distinction might not be in Supreme Court litigation but rather in the lower federal courts⁴⁸ and in the fashioning of new legislation.

[31 ELR 11084]

Federal and State Responses to SWANCC

An unfortunate tendency of many lawyers and legal scholars, who spend most of their time pondering the substance and implications of judicial decisions, is to overlook the significance of the actions of national and state political authorities in assessing legal developments. These latter activities provide important insights not just into constitutional structure (including both separation of powers and federalism) or even how federalism works but also the likely direction of the law. Wetlands regulation is a case in point, for a closer look at federal and state responses to SWANCC indicates that the decision might not have serious or radical consequences for wetlands regulation.

After some early signals that his administration would sharply deviate from the environmental policies of President William J. Clinton, President George W. Bush has taken a more classically conservative approach, i.e., he has begun to preserve rather than to challenge the status quo.⁴⁹ Perhaps most importantly, the Bush Administration has upheld numerous initiatives or rules adopted in the closing days of the Clinton Administration to protect the environment, including, among others, rules concerning lead; the designation of 18 national monuments by President Clinton under the Antiquities Act⁵⁰; a ban on snowmobiles in two national parks in Wyoming; the regulation proposed in the closing days of the Clinton Administration to put almost 60 million acres of public forest off-limits to road building; and a ruling initially issued by the Clinton Administration requiring developers to obtain permits under the CWA before carrying out certain earth-moving activities that harmed protected wetlands.⁵¹ Of particular significance for the future of wetlands regulation is the fate of the Executive Order issued by President Clinton in response to SWANCC requiring federal agencies to consider the impact of their activities on migratory birds.⁵² The order directed federal agencies to develop within two years a memorandum of understanding with the U.S. Fish and Wildlife Service if their actions might have a "measurable negative effect on migratory bird populations."⁵³ [31 ELR 11085] To date, President Bush has taken no action to rescind or alter this order.⁵⁴

In addition, the shift in control of the Senate back to the Democrats, resulting from Sen. James Jeffords' (I-Vt.) decisions to leave the Republican party to become an Independent and to vote with the Democrats in organizing Senate leadership,⁵⁵ will probably ensure no significant shift in the scope or substance of federal environmental law.⁵⁶ The Democratically led Senate is highly unlikely to approve any legislation that would weaken existing federal environmental policies.

At the same time, it is highly unlikely that the Congress, as it is presently constituted, will expand the scope of federal environmental protections. The Democrats' majority is razor-thin in the Senate; the party is not ideologically unified; and, even if the Democrats were able to get the Senate to pass new legislation expanding federal environmental protections, the bills would be unlikely to get a favorable reception in the more conservative House.

The final development has to do with states' responses to SWANCC. To date, at least 19 states have responded to the decision by either enacting or recommending the enactment of laws to fill the void left as a result of the Court's decision. These states include, inter alia, California, Connecticut, Illinois, New Jersey, North Carolina, Ohio, Oregon, South Carolina, Virginia, and Wisconsin. These reactions are a clear illustration of environmental federalism in action. When these reactions are read in conjunction with the federal authorities' apparent efforts to keep intact something on the order of the Rule, I expect its harshest critics will have little opportunity to celebrate their victory; the prospects of an absence of some combination of federal and state regulation to restrict private development that threatens migratory birds are not good.

Conclusion

At least two lessons can be drawn from SWANCC and from the federal and state responses to SWANCC. The first is likely to please the opponents of the now-defunct Rule, while the second is likely to comfort the rule's proponents.

On the one hand, SWANCC represents a perfectly plausible attempt of the Court to impede federal extensions of authority into state sovereignty. For both the Rule and its proponents, this no doubt comes as a blow, but it can hardly come as a surprise after Lopez and Morrison that federal authority, even under the Commerce Clause, must have some outer boundary or limit. The ensuing challenge for the Rule's proponents is to construct a coherent case for the extension of federal authority to protect migratory birds consistently with the constitutionally recognized boundary separating federal and state sovereignty.⁵⁷

On the other hand, the responses to SWANCC represent efforts to meet this challenge. Administrators of EPA and the Corps, in both the Clinton and Bush Administrations, have accepted the legitimacy of a significant federal role in protecting migratory birds, while many states have appeared eager to fill any void left in the Executive Orders and federal regulations fashioned in the aftermath of SWANCC. These responses indicate that while the Rule itself has fallen, an important lesson is inescapable for constitutional law: that the protection of migratory birds, whose flight naturally crosses state boundaries, requires the coordination and cooperation of national and state sovereigns rather than either sovereignty acting alone.

1. 51 Fed. Reg. 41217 (Nov. 13, 1986).

2. See Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 678, 31 ELR 20382 (2001) (describing the Corps' definition of "waters of the United States" as including, inter alia, "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce'") (quoting 33 C.F.R. § 328.3(a)(3) (1999)).

3. See, e.g., Timothy S. Bishop et al., One for the Birds: The Corps of Engineers' "Migratory Bird Rule," 30 ELR 10633 (Aug. 2000); 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); John A. Leman, The Birds: Regulation of Isolated Wetlands and the Limits of the Commerce Clause, 28 U.C. DAVIS L. REV. 1237 (1995); 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. 366 (1998).

4. See, e.g., Stephen R. McAllister & Robert I. Glicksman, Federal Environmental Law in the "New" Federalism Era, 30 ELR 11122 (Dec. 2000); Charles Tiefer, After Morrison, Can Congress Preserve Environmental Laws From Commerce Clause Challenge?, 30 ELR 10888 (Oct. 2000); Philip Weinberg, Does That Line in the Sand Include Wetlands? Congressional Power and Environmental Protection, 30 ELR 10894 (Oct. 2000); Edward Alburo Morrissey, The Jurisdiction of the Clean Water Act Over Isolated Wetlands: The Migratory Bird Rule, 22 J. LEGIS. 137 (1996); Stephen M. Johnson, United States v. Lopez: A Misstep, But Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33 (1996); Lori J. Warner, The Potential Impact of United States v. Lopez on Environmental Regulation, 7 DUKE ENVTL. L. & POL'Y F. 321 (1997). See also Michael J. Gerhardt, Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers, 30 ELR 10980, 10987-88 (Nov. 2000).

5. 529 U.S. 1129 (2000).

6. 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's most 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 . . . .").

7. See infra notes 49-57 and accompanying text. For other commentaries in the Environmental Law Reporter on the decision and its ramifications, see Michael P. Healy, Textualism's Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and Chevron, 31 ELR 10928 (Aug. 2001); William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 ELR 10741 (July 2001); Steven M. Johnson, Federal Regulation of Isolated Wetlands After SWANCC, 31 ELR 10669 (June 2001); Robin Kundis Craig, Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency, 31 ELR 10508 (May 2001).

8. 121 S. Ct. 675, 31 ELR 20382 (2001).

9. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999).

10. 121 S. Ct. at 675, 31 ELR at 20382.

11. He noted that § 404 of the CWA grants the Corps authority to issue permits "for the discharge of dredged or fill material into navigable waters at specified disposal sites," 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a), and that the Act defines "navigable waters" as "waters of the United States," including the territorial seas." Id. § 1362(7), ELR STAT. FWPCA § 502(7). The Chief Justice then quoted the Corps' Rule, defining the term "waters of the United States" as "waters such as intrastate lakes, rivers, streams . . . or natural ponds, the . . . destruction of which could affect interstate or foreign commerce." 33 C.F.R. § 328(a)(3). Finally, the Court quoted the Corps' Rule, through which the Corps asserted jurisdiction over intrastate waters "which are or would be used as habitat by birds protected by Migratory Bird treaties; . . . which are or would be used as habitat by other migratory birds which cross state lines; . . . which are or would be used as habitat for endangered species; . . . or used to irrigate crops sold as interstate commerce." 51 Fed. Reg. at 41217. The most controversial assertions of jurisdiction made within the Rule were those covering intrastate waters "used as habitat by birds protected by the Migratory Bird Treaties" or "used as habitat by other migratory birds which cross state lines." Id.

12. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(b).

13. 121 S. Ct. at 680, 31 ELR at 20383.

14. 474 U.S. 121, 16 ELR 20086 (1985).

15. 121 S. Ct. at 680, 31 ELR at 20383.

16. Id. at 682, 31 ELR at 20384.

17. 33 U.S.C. § 1344(g)(1), ELR STAT. FWPCA § 404(g)(1). The section provides, in relevant part:

The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce, including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact.

18. The Chief Justice noted that, "where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." 121 S. Ct. at 683, 31 ELR at 20384, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984).

19. SWANCC, 121 S. Ct. at 683, 31 ELR at 20384.

20. Id.

21. Id. United States v. Morrison, 529U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).

22. 121 S. Ct. at 684, 31 ELR at 20385.

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

24. Id. at 685, 31 ELR at 20385.

25. Id. at 694, 31 ELR at 20389.

26. Id. at 695, 31 ELR at 20389.

27. Id. (citing Richard Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210, 1222 (1992)).

28. 121 S. Ct. at 683, 31 ELR at 20384:

Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result . . . . This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. . . . This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.

Id. at 684, 31 ELR at 20385 ("We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference.").

29. Under the nondelegation doctrine, delegations are acceptable as long as an "intelligible principle" is provided to the agency receiving the delegated power. See, e.g., Mistretta v. United States, 488 U.S. 361, 372 (1988).

30. Understood from this point of view, the case is consistent with the Court's other significant environmental decision of the current Term, Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 31 ELR 20512 (2001). In an important portion of that decision, the Court unanimously reversed the D.C. Circuit's unusual application of the nondelegation doctrine to strike down EPA's most recent revision of the national ambient air quality standards, stating that the scope of discretion that Congress accorded to EPA to set forth standards for ground-level ozone and particulate matter "is well within the outer limits of our nondelegation precedents." 121 S. Ct. at 913, 31 ELR at 20514. Justice Antonin Scalia noted that the Court had found the requisite "intelligible principle" lacking in only two federal statutes, id. (quoting Mistretta, 488 U.S. at 416), both in 1935, and the Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Id. (quoting the D.C. Circuit's opinion, American Trucking Ass'n v. EPA, 175 F.3d 1027, 1034, 29 ELR 21071, 21072 (D.C. Cir. 1999)). Further, he stated, "Even in sweeping regulatory schemes we have never demanded . . . that statutes provide a 'determinate criterion' for saying 'how much [of the regulated harm] is too much.'" The two other issues addressed in American Trucking concerned EPA's authority to implement the revised ozone standard in areas where ozone levels currently exceed the maximum level permitted by that standard. First, the Court rejected EPA's argument that the appellate court had no jurisdiction to review EPA's implementation policy because that policy was not final agency action. 121 S. Ct. at 916, 31 ELR at 20515. Second, the Court found, on the merits of the implementation issue, that the statutory provision at issue was sufficiently unclear that EPA had discretion to interpret it, but EPA's interpretation was unreasonable and EPA's implementation policy was thus unlawful. Id. at 919, 31 ELR at 20517. Accordingly, the Court remanded this second issue. Id.

It is probably not a coincidence that in American Trucking and SWANCC that the Court's skepticism over the reasonableness of agency constructions of delegated authority led to the same outcome in both cases—striking down federal environmental regulations under the first step of Chevron analysis. This outcome reflects the Court's resistance to expansive construction of and deference to contested federal exercises of authority in both cases. Nevertheless, the Court's approach in both cases avoided constitutional issues and in American Trucking included the significant step of unanimously embracing the modern understanding of the nondelegation doctrine. See supra notes 28-29 and accompanying text.

31. 467 U.S. at 837, 14 ELR at 20507.

32. In a study of the Chevron doctrine in 1997, Prof. Ron Levin concluded, "the Court has not proven to be more deferential in the post-Chevron era than it was before; but when it utilizes the Chevron framework it either upholds the agency or reverses on the strength of step one." Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHL-KENT L. REV. 1253, 1261 (1997). In an extensive analysis of decisions issued in the 1990s. Christopher Schroeder and Robert Glicksman observed that courts "are finding one-third of the challenges to EPA interpretations to fall on the [Chevron] Step One side of the line, most of them resulting in EPA losses. At Step One, EPA loses 59% of the time. According to the courts, in the litigated cases in which the statute is clear, EPA gets it wrong more often than right." Christopher H. Schroeder & Robert L. Glicksman, Chevron, State Farm, and EPA in the Courts of Appeals During the 1990s, 31 ELR 10371, 10377 (Apr. 2001). At Step Two, however, "EPA . . . is overwhelmingly successful at this state of Chevron analysis (over 92% success rate in the 1990s)." Id. at 10389.

33. 529 U.S. 120 (2000).

34. See id. at 120. In another analogous decision rendered near the end of the Term, the Court considered the issue of the extent of judicial deference to which a federal agency is entitled for its administrative determinations that are not the product of a formal regulatory process. See United States v. Mead Corp., 121 S. Ct. 2164 (2001). With only Justice Antonin Scalia dissenting, the Court determined that the U.S. Customs Service was entitled not to the highest degree of deference owed to agency interpretations under Chevron but rather only modest deference dictated by the Court's decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the Court grants Chevron deference only if there were evidence Congress intended to delegate to the Customs Service the power to issue rulings with the force of law and there was no such evidence in Mead Corp. The Court explained that congressional "delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of comparable congressional intent." Mead Corp., 121 S. Ct. 2171. Just as in Mead Corp., the Corps in SWANCC failed to follow proper procedures prior to issuing the Rule, in particular the "Corps issued the [Rule] without following the notice-and-comment procedures outlined in the Administrative Procedure Act. . . ." SWANCC, 121 S. Ct. at 675, 678 n.1, 31 ELR at 20382 & 20382 n.1. But, whereas the Court gave the Customs Service modest deference in Mead Corp. under Skidmore, it did not cite to Skidmore or give any deference to the Corps in SWANCC because the Rule impinged on state sovereignty. Thus, SWANCC and Mead Corp. clarify significant limitations on Chevron deference, with the former indicating the circumstances under which an agency is given no deference at all and the latter only modest deference.

35. See supra note 22 and accompanying text.

36. 121 S. Ct. at 682, 31 ELR at 20384.

37. Nevertheless, at least one interesting reading of recent Commerce Clause decisions posits that they are likely to have the unintended or perverse consequence of producing broader, more comprehensive enactments than the ones struck down. See infra note 48 and accompanying text.

38. See SWANCC, 121 S. Ct. at 683, 31 ELR at 20384:

Respondents argue that the "Migratory Bird Rule" falls within Congress' power to regulate intrastate activities that "substantially affect" interstate commerce. They note that the protection of migratory birds is a "national interest of very nearly the first magnitude," . . . and that . . . millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. These arguments raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now . . . focus upon the fact that the regulated activity is petitioner's municipal landfill, which is "plainly of a commercial nature." But this is a far cry, indeed, from the "navigable waters" and "waters of the United States" to which the statute by its terms extends.

Moreover, the Court found that "permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use. . . ." Id. at 684, 31 ELR at 20385.

39. Lopez, 514 U.S. at 559-60.

40. Morrison, 529 U.S. at 608.

The non-economic, criminal nature of the conduct at issue was central to [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.

41. Id. at 610.

42. SWANCC, 120 S. Ct. at 694, 31 ELR at 20389.

43. Id. at 683, 31 ELR at 20384. Interestingly, the Court has been willing to accept post hoc explanations of congressional objectives in cases in which it applies only rational basis review. See, e.g., U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) (opinion by then-Justice William H. Rehnquist). In other cases in which the Court has applied heightened scrutiny, it has resisted post hoc explanations. See, e.g., United States v. Virginia, 518 U.S. 515 (1999).

44. It is important to note that in SWANCC the Court recognized other possible bases for striking down a law that seeks to use the same means to secure the same objective as the Rule. Perhaps the most significant is the Court's recognition of the distinction between subjects that encompass genuinely national interests, which properly fall within Congress' power to regulate, and others that are left exclusively for the States to regulate. In the majority's view, the Rule implicated one of the latter subjects. The majority acknowledged the respondents' argument "that the protection of migratory birds is a 'national interest of very nearly the first magnitude,'" which cites from Justice Oliver Wendell Holmes' famous opinion in Missouri v. Holland, 252 U.S. 416, 435 (1920). In dissent, Justice John P. Stevens refers to "Justice Holmes' cogent] [ observation in Missouri that the protection of migratory birds is a textbook example of a national problem." SWANCC, 121 S. Ct. at 695, 31 ELR at 20389 (Stevens, J., dissenting). He adds:

The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving "externalities," federal regulation is both appropriate and necessary. Id.

In support of this conclusion, Justice Stevens relied in part on a prior decision in which the Court "deferred to Congress' finding that nationwide standards were 'essential' in order to avoid 'destructive interstate competition' that might undermine environmental standards." Id. (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 282, 11 ELR 20569, 20573 (1981)). The majority dismissed, however, both the respondents' and dissents' arguments, because they "would result in a significant impingement of the States' traditional and primary power over land and water use." While in a line of cases, from 1937 at least until Lopez in 1995, the national-local distinction collapsed in part because of its very artificiality (and, perhaps, the Court's recognition that Congress was better situated to figure out whether something was a national problem requiring a national solution), the Rehnquist Court appears disposed both to accept the legitimacy of the national-local distinction and to approach it from the direction of what is not national rather than from the perspective of what ought to be treated as national. The Court's recognition of formal reaims into which federal power may not extend raises a question about how bright or clear the national-state distinction is, an issue that undoubtedly will become the focus of future litigation. The lower federal courts have made some attempts at clarification in this area. See, e.g., United States v. Dorris, 236 F.3d 582 (10th Cir. 2000), cert. denied, 121 S. Ct. 1635 (2001); Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000). See generally Glenn H. Reynolds & Brannon P. Denning. Lower Court Readings of Lopez, or What If the Supreme Court Held a Constitutional Revolution and Nobody Came? 2000 WIS. L. REV. 369 (providing an overview of the activity of the lower federal courts and concluding that further Supreme Court pronouncements are needed to clarify the federalism and separation-of-powers concerns raised in the wake of the Lopez decision).

45. See supra note 43 and accompanying text.

46. This position depends on the lower courts upholding federal laws and thereby making it easier for the Court to avoid questions of constitutional law arising from their being struck down.

47. See Gibbs v. Babbitt, 214 F.3d 483, 30 ELR 20602 (4th Cir. 2000) (sharply divided panel upholding application of the Endangered Species Act), cert. denied, 121 S. Ct. 1061 (2001). In SWANCC, Justice Stevens cites to the decision approvingly as an analogous circumstance helping to demonstrate the "causal connection between the filling of wetlands and the decline of commercial activities." SWANCC, 121 S. Ct. at 695, 31 ELR at 20389 (Stevens, J., dissenting) ("The relationship between red wolves takings and interstate commerce is quite direct—with no red wolves, there will be no red wolf tourism.") (quoting Gibbs, 214 F.3d at 492-93, 30 ELR at 20605).

48. In an interesting essay, Prof. Adrian Vermeule suggests that the Supreme Court in Lopez and Morrison failed to take into account that Commerce Clause review will promote not the intended effect of decentralization but rather more comprehensive regulatory regulation. Adrian Vermeule, Does Commerce Clause Review Have Perverse Effects? (unpublished manuscript, on file with the author). Professor Vermeule notes that this prospect is evident in Hodel v. Indiana, 452 U.S. 314, 11 ELR 20581 (1981), where the formulation states that "challenged provisions not valid in themselves will be upheld if they are an 'integral part of [a regulatory program]' that is valid when taken as a whole." Vermeule, supra, at 8 (citations omitted). Moreover, Professor Vermeule directs attention to language (already taken seriously by lower courts) in Lopez, in which the Court finds the act struck down in the case

is not an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained in 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.

Id. (quoting Lopez). Two lower court opinions figure prominently in his analysis. See Gibbs; United States v. Kirk, 105 F.3d 997 (5th Cir. 1997).

For a recent example of this reasoning, one need look no further than the dissent in SWANCC. At one point, Justice Stevens defends the Rule by referring no less than six times in a single paragraph to the CWA as a comprehensive regulatory scheme, of which the Rule was an integral part. SWANCC, 121 S. Ct. at 686, 31 ELR at 20386:

The CWA "was universally described by its supporters as the first truly comprehensive federal water pollution legislation. The 'major purpose' of the CWA was 'to establish a comprehensive long-range policy for the elimination of water pollution.' . . . And 'no Congressman's remarks on the legislation were complete without reference to [its] "comprehensive" nature . . . .' A House sponsor described the bill as 'the most comprehensive and far-reaching water pollution bill we have ever drafted' . . . and Senator Randolph, Chairman of the Committee on Public Works, stated: 'It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment.' . . . This Court was therefore correct when it described the 1972 amendments as establishing 'a comprehensive program for controlling and abating water pollution.'"

(Citations omitted.) Justice Stevens drives this point home two pages later: "By 1972, Congress' Commerce Clause power over 'navigation' had long since been established. . . . The activities regulated by the CWA have nothing to do with Congress' 'commerce power over navigation.' Indeed, the goals of the 1972 statute have nothing to with navigation at all." Id. at 687-88, 31 ELR at 20386. He explains further in the next paragraph.

the interests served by the statute embrace the protection of "significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites" . . . . For wetlands and "isolated" inland lakes, that interest is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the CWA supports the conclusion that in 1972 Congress contemplated—much less commanded—the odd jurisdictional line that the Court has drawn today.

Id. at 688, 31 ELR at 20386 (citations omitted). In short, the Corps' jurisdiction is not limited by the term "navigation" any longer but rather extends to "'waters over which federal authority may properly be asserted.'" Id. (citation omitted).

The major problem with the dissent's argument is, however, readily apparent. The CWA limits the Corps' jurisdiction to "navigable waters," however one construes these explicit terms. As long as these terms are in the statute, their plain meaning is inescapable. In addition, the dissent's argument regarding comprehensiveness seems to have had no apparent impact on the majority's analysis. The majority was not persuaded that protecting migratory birds was essential or integral to a scheme that fit within the Lopez framework. The critical inference to be drawn from the Court's opinion is that the comprehensiveness of a legitimate scheme cannot legitimize an action that is either separately dubious constitutionally or is not clearly integral to its accomplishment.

49. The most significant of the early actions of the Bush Administration is the fallout from the tax cut bill recently signed into law. See David Rosenbaum, Congress Agrees on Final Details for Tax-Cut Bill, N.Y. TIMES, May 26, 2001, at A1. One problem that is already apparent with the tax cut is the possibility of subsequent adjustments in its size as Congress nears the outer boundary of the period of its implementation. Moreover, by removing over $ 1.3 trillion from potential federal expenditures over the next decade, the Bush Administration has guaranteed less money for a wide variety of federal programs and initiatives, though at this stage we can only speculate as to which specific federal programs and initiatives will be weakened or eliminated as a result.

50. Dana Milbank & Eric Pianin, Bush to Counter Environmental Criticism; Outrage Over Regulatory Changes Pushes Administration to Tout Green Policies, WASH. POST, Mar. 31, 2001, at A6. While Interior Secretary Gail Norton has requested state and local governments to indicate their desired "boundary adjustments" to allow commercial activity in some of the areas designated as national monuments, see Watching Mr. Bush on Earth Day, N.Y. TIMES, Apr. 22, 2001, § 4, at 16 (quoting action of Interior Secretary Norton), the Director of the White House's Domestic Policy Council emphasized the Bush Administration's intention to "'keep these monuments in place.'" Milbank & Pianin, supra, at A6 (quoting John Bridgeland, Director of President Bush's Domestic Policy Council).

51. Douglas Jehl, EPA Backs Wetlands Rule Set by Clinton, N.Y. TIMES, Apr. 17, 2001, at A1. A challenge to the rule is pending. See id.

52. Exec. Order No. 13186, 66 Fed. Reg. 3853 (Jan. 17, 2001), ELR ADMIN. MAT. 45135.

53. In addition, the Corps has developed a new definition of wetlands in response to the SWANCC decision. At a meeting on March 1, 2001, the Corps changed its working definition of wetlands for purposes of CWA jurisdiction. See John H. Stam. Court Decision on Isolated Waters Prompts Army Corps to Revise Definition, 32 Env't Rep. (BNA) 448 (Mar. 9, 2001). EPA and the Corps have also acted to formalize the new working definition by adding the proposed rulemaking to their regulatory agendas with final action scheduled for December 2002. See The Unified Agenda of Federal Regulatory and Deregulatory Actions, 66 Fed. Reg. 26258 (May 14, 2001). Interestingly, the new definition confirmsProfessor Vermeule's theory about the possibility of Commerce Clause doctrine producing perverse effects, for the new definition reflects the Corps' effort to adopt a broader or more comprehensive jurisdiction rather than a narrower one in response to the Court's decision. This final impact of the Corps' action is potentially called into question, however, by the continued activity of the courts post-SWANCC in defining federal jurisdiction. Compare Rice v. Harken Exploration Co., 2001 U.S. App. LEXIS 7462 (5th Cir. 2001) (refusing to extend federal statutory protection of navigable waters to groundwater in absence of statutory language or evidence of congressional intent) with Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 31 ELR 20535 (9th Cir. 2001) (extending federal statutory protection to artificially constructed canals as waters of the United States). See also United States v. Krilich, No. 92-C-5354 (N.D. Ill. June 22, 2001) (parties are bound by pre-SWANCC stipulation that isolated waters are waters of the United States, and it is too late to contend that the parties were mistaken); United States v. Interstate Gen. Co., No. AW-96-1112, 95-0390 (D. Md. June 12, 2001) (SWANCC does not warrant granting a petition for writ of error coram nobis or vacating a consent decree in the case involving the filling of isolated wetlands).

54. One should note, though, that opening the Arctic reserves to oil exploration poses the possibility of significant harm to the migratory birds that use the reserves as habitat. At this time, it is unclear how much, if any, of the reserves will be opened to exploration and how much of the exploration itself will pose a risk to migratory birds. See infra note 56 and accompanying text.

55. Katharine Q. Seeyle & Adam Clymer, Jeffords Defects, Forcing Shift in Agenda, N.Y. TIMES, May 25, 2001, at A1.

56. Indeed, no sooner had the news of the shift been made public than the media declared effectively "dead" President George W. Bush's and Vice President Dick Cheney's intention to open some of the Arctic Wildlife Refuge for oil exploration. See, e.g., Alison Mitchell, Daschle Quick to Explain What New Senate Math May Mean for the Bush Agenda, N.Y. TIMES, May 28, 2001, at A9; Robert Schlesinger, A Shift in Power Energy Legislation; Move Gives Democrats More Muscle on Environment, BOSTON GLOBE, May 25, 2001, at A25.

57. One argument that some lower courts have acknowledged, but to which the Court has not yet given its imprimatur, is that migratory birds might be relatively small in number but essential to general ecological welfare. See Michael J. Gerhardt, Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers, 30 ELR 10980, 10988 (Nov. 2000).