SWANCC: Constitutional Swan Song for Environmental Laws or No More Than a Swipe at Their Sweep?

Charles Tiefer

The author is Professor, University of Baltimore Law School; B.A., summa cum laude, Columbia College, 1974; J.D., magna cum laude, Harvard Law School 1977. He was Solicitor and Deputy General Counsel of the House of Representatives in 1984-1995.

[31 ELR 11493]

I. Introduction

The U.S. Supreme Court decision last term in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers¹ (SWANCC), striking down the migratory bird rule for wetlands regulation, warrants some reading of the Court's environmental tea leaves. Some fine commentary in these pages² still leaves murky whether the opinion seriously imperils other environmental laws and regulations. Chief Justice William H. Rehnquist's SWANCC opinion for a five-Justice majority had worrisome implications that the new restrictive view of the U.S. Commerce Clause, intensified by United States v. Morrison³ in 2000, could bar national environmental legislation that "alters the federal-state framework by permitting a federal encroachment upon a traditional state power" such as "the States' traditional and primary power over land and water use."⁴ Peering closely at those tea leaves, the SWANCC decision still allows the views that the Court—particularly crucial Justices Sandra Day O'Connor and Anthony M. Kennedy—acted more on the basis of their narrow statutory interpretation than with a view toward striking down environmental legislation. In particular, appellate courts sensing the Court's drift should not take SWANCC as any more than a light swipe, not a serious strike, at the Endangered Species Act (ESA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

II. The Case

The Solid Waste Agency of Northern Cook County (SWANCC), a consortium of 23 suburban Chicago cities and villages, set out to develop a disposal site for baled non-hazardous solid waste. SWANCC asked the U.S. Army Corps of Engineers (Corps) whether they would need a development permit for an abandoned sand and gravel pit that now had a scattering of permanent and seasonal ponds. The Corps asserted jurisdiction pursuant to the so-called migratory bird rule⁵ when it determined that several known migratory bird species used the site, and refused SWANCC a permit pursuant to § 404(a) of the Clean Water Act (CWA).⁶ SWANCC sued the Corps and lost in both the district court and the court of appeals.

At the time of the lower court decisions, the Court had already decided United States v. Lopez,⁷ launching its recent line of Commerce Clause challenges to congressional regulation of intrastate activities. On May 15, 2000, the Court decided Morrison, striking down the Violence Against Women Act's provision for a federal civil remedy because the activity it regulated did not substantially affect interstate commerce. A week later, on May 22, the Court granted certiorari in SWANCC on both the statutory question of whether the migratory bird rule was soundly based on the CWA, and, if so, whether the basis for federal regulatory jurisdiction was constitutionally sufficient.⁸ At oral argument, the Justices' questions for the Deputy Solicitor General⁹ focused heavily on the statutory issue, with very few questions concerning the constitutional one.¹⁰

III. A Pessimistic View: The Implications in Chief Justice Rehnquist's Opinion

Chief Justice Rehnquist had written the opinion for a five-Justice majority in Lopez and the opinion for the same five-Justice majority in Morrison, and, he wrote the opinion for the same five-Justice majority in SWANCC. The latest opinion purported only to decide the statutory question, and its nonconstitutional reasoning explained why the Court "find[s] section 404(a) to be clear" in not sustaining the migratory bird rule. However, after saying this, the opinion went on, "but even were we to agree with respondents, we [31 ELR 11494] would not extend Chevron deference here."¹¹ It then explained how the existence of the constitutional issue requires Congress not merely to have intended the result, but rather and further, that Congress must have so expressed that intention by a clear statement:

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.¹²

The Chief Justice added a federalism point: "This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power."¹³ He then recalled the decisions in Morrison and Lopez, noted the U.S. arguments that protection of migratory birds falls within Congress' power, and declared that "these arguments raise significant constitutional questions."¹⁴ The Commerce Clause test for constitutionality would require the Court to "evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce," which, he said, "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, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is 'plainly of a commercial nature.'"¹⁵ At this point Chief Justice Rehnquist, rather than resolving the question or exploring it further, noted that the migratory bird rule "would result in a significant impingement of the States' traditional and primary power over land and water use."¹⁶

All this would count, in itself, as a potent enough suggestion that environmental laws and regulations would now face serious Commerce Clause problems. Before and after SWANCC, observers have wondered how serious is the threat to environmental laws, post-Lopez. Environmental problems do contrast with the subjects in the prior two Supreme Court cases, the problem of safety in local schools in Lopez and the difficulty of protecting women against violence in Morrison. Some have hoped that environmental problems so obviously implicate national, as well as local, concerns, and involve commercial rather than just noncommercial activities, that the Court's new Commerce Clause cases would just pass by the environmental laws. Just on their face, these remarks of the Chief Justice dash that hope. They unmistakably put environmental regulation at risk on Commerce Clause grounds.

A bit more probing shows two worrisome implications of SWANCC about environmental regulation, dealing with focusing on the relevant state activity, and on what it means to justify regulating something for reasons of commerce. First, an important part of the issue of whether the environmental laws would come under Commerce Clause scrutiny consists of how the Court would view the relevant state activity. Some commentators had hoped that the Court would recognize federal and state roles as overlapping as to environmental matters, and would not define their interaction as one according primacy clearly to the states.¹⁷

The SWANCC dissent by Justice John Paul Stevens and three other Justices alluded to the powerful federal interest in the environment. With specific reference to the case's subject, the dissent built eloquently on Justice Oliver Wendell Holmes' opinion in Missouri v. Holland¹⁸ that the federal interest in protecting migratory birds is of "the first magnitude."¹⁹ Chief Justice Rehnquist's majority opinion, too, must acknowledge the historic federal role in migratory bird protection, as he also paid homage to Holmes in Holland. The dissent also emphasized that the last Supreme Court Commerce Clause decision on a challenge to a major environmental law, the Hodel v. Virginia Surface Mining & Reclamation Ass'n²⁰ 1981 opinion upholding federal strip mining regulation, did not accept the argument that the federal law could not reach a supposedly exclusive sphere reserved for state land use regulation.

When Chief Justice Rehnquist asserted for the first time in this context the "States' traditional and primary power over land and water use," what he actually cited did not point to any previous Court acknowledgment of such a principle.²¹ The flimsy authority cited by the Chief Justice may not have supported his point, but nonetheless, and perhaps even especially, SWANCC's launching of this point put federal environmental law at risk in Commerce Clause challenges.

Second, the Chief Justice appeared, at first glance, to affect another Commerce Clause point—whether a rule draws support from the status of the regulated land use as a commercial activity. The U.S. Department of Justice (DOJ) had stressed at length that SWANCC's landfill would be used commercially. To support this, the DOJ cited the Court's significant holdings in the past one-quarter century stressing that waste disposal in landfills is very much part of interstate commerce, because landfills provide their waste disposal service as a large, vital, and often substantially costly part of a national stream of commerce.²²

[31 ELR 11495]

However, when Chief Justice Rehnquist's opinion specifically quoted the DOJ brief on this point, it did so apparently to disagree with it. He contrasted the U.S. position with the fact that the Corps "has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds,"²³ that is, the Corps would "claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule'"²⁴ whether or not the proposed use was commercial.

Commentators have noted the varied possibilities of how the concept of "commercial" use or economic activity may relate to an environmental law or regulation.²⁵ The more ways the Court accepts a law or regulation as relating to or bearing up economic activity, the greater the likelihood that it will uphold the measure against Commerce Clause challenge. Hence, at first glance, Chief Justice Rehnquist's skepticism about the U.S. argument suggests yet another doctrinal defeat for environmental regulation. His comments appear to undermine the claim that an environmental law or regulation can call itself commercial in focus simply because the activity it reaches in the specific case, or most of the activities it reaches in general, are commercial uses of land or water. Rather, to the extent the legislature or agency defined the reach of the law or regulation in terms of an environmental goal—for example, protection of migratory birds—rather than in terms of regulating only those uses that are commercial, the Chief Justice would be skeptical of deeming the law to fit the concept of regulation compatible with Lopez and Morrison. And for the Court to take a narrow view of what is regulation of economic activity would make the constitutional foundation of environmental laws that much less secure.

IV. An Unpessimistic View: Where Justices O'Connor and Kennedy Still Stand

SWANCC also justifies an entirely different, unpessimistic, and hopefully realistic view. This must start with a look at the crucial stances of Justices O'Connor and Kennedy, followed by a focus on the statutory rather than constitutional nature of SWANCC. From these perspectives the factions on the Court appear to be roughly in balance. Seen thus, the opinion is less problematic for other environmental laws potentially subject to Commerce Clause challenges.

The mere fact that Justices O'Connor and Kennedy did not file separate opinions should not obscure how their stances differ importantly from those of the Chief Justice. When Chief Justice Rehnquist launched the new Commerce Clause case line in Lopez, Justice Kennedy, joined by Justice O'Connor, wrote a long, full, revealing concurrence.²⁶ It separately traced the history of Commerce Clause jurisprudence, sometimes agreeing with the majority opinion, but taking overall a more cautious, less dogmatic stance. The Kennedy-O'Connor Lopez concurrence expressed a greater need to adhere to stare decisis respecting the Court's previous deferential rulings involving challenged acts of Congress, and only called into question the relatively more problematic kinds of statutes. It sought more to connect the new Commerce Clause approach to Justice O'Connor's previous federalism decisions, which sought to preserve the institutions and powers of state government, rather than to create a sphere of private interstate activity not subject to federal regulation.²⁷

While neither Justice wrote separately in Morrison or SWANCC, there is every reason to view these cases as though both Justices stood by their concurring opinion in Lopez without seeing a need to repeat what they had said. In effect, the Chief Justice has kept his five-Justice majority on the same track since Lopez and now including SWANCC by not provoking Justices Kennedy and O'Connor to have to write separately again. His SWANCC opinion has to be read both for what it says, and for the ways in which it avoids such provocation.

In particular, these two Justices each have track records of greater appreciation of the federal government's proper role in environmental law than the other three Justices in the majority. Justice Kennedy has kept the Court from forming a five-Justice majority that would go so far on takings issues as to call the core of environmental regulation into question.²⁸ Justice O'Connor concurred with the majority in perhaps the most important environmental statutory interpretation decision of the past decade, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.²⁹ In that case, her concurring opinion upheld the implementing regulations for the ESA, pragmatically narrowing the regulations in order to sharply dispute a dissenting opinion by Chief Justice Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas.

The distance Justice O'Connor established in her Sweet Home concurrence between herself and the dissent indicated the limits of what Chief Justice Rehnquist could say in SWANCC without provoking her into adding a specific environmental codicil to the Kennedy-O'Connor Lopez concurrence. Moreover, Justice O'Connor wrote an illuminating short opinion in a third case which, in a loose way, is on a subject related to both Sweet Home and SWANCC, treating all three as concerning matters relating to federal actions that reach into assertedly local affairs in order to protect matters of national interest such as migratory birds. In North Dakota v. United States,³⁰ the Court in 1982, prevented North Dakota from restricting federal acquisition of easements for waterfowl. Justice O'Connor wrote a separate opinion, in which then-Justice Rehnquist joined, showing greater deference than the majority to the state governmental concerns.³¹ The consistency of her views in the separate opinions in Sweet Home and North Dakota and in her concurrence [31 ELR 11496] in Lopez demonstrate the points on which Justice O'Connor agrees or disagrees with the Chief Justice, and virtually specifies where she silently stood in SWANCC.

Above all, the stances of Justices Kennedy and O'Connor underline that the holding in SWANCC—as opposed to the dicta of Chief Justice Rehnquist—concerns only the Corps' action in exceeding what Congress had clearly granted as statutory authority pursuant to the CWA. The Court did not address whether Congress could constitutionally enact a migratory bird rule if it set out clearly to do so with sound reason, determination, and skill. Without tracing the bulk of the majority and dissenting opinions in SWANCC which debate the statutory question, the first and foremost reason to emphasize its statutory side, and to view without alarm Chief Justice Rehnquist's efforts to drop worrisome constitutional hints, consists of the freedom Justices O'Connor and Kennedy have in the future not to subscribe to those constitutional implications.

Down the road, Chief Justice Rehnquist, and Justices Thomas and Scalia, may well repeat the suggestive comments in SWANCC as though they were established constitutional law. However, Justices O'Connor and Kennedy remain perfectly free not to join them in this, and instead to view SWANCC solely as a statutory interpretation case. Moreover, in this regard, the focus at oral argument upon the statutory rather than the constitutional issue takes on special significance. In effect, at the oral argument, the key discourse did not occur between the Justices and the counsel, or even between what became the five-Justice majority and the four dissenting Justices. Rather, the key exchanges consisted of the implicit one between Justices O'Connor and Kennedy, on one side, and the Chief Justice with Justices Scalia and Thomas, on the other. The two swing Justices indicated a willingness to go along with a unified majority opinion reversing on statutory grounds, with the other three Justices in the majority agreeing to write it so that it could be read that way.

By viewing SWANCC as a statutory interpretation case, Justices O'Connor and Kennedy had ample reason to accept the Court's opinion as satisfactory without subscribing to the majority's dicta on constitutional implications. For the following reasons, Justices O'Connor and Kennedy may well have viewed the Chief Justice's statutory reasoning as the heart of his opinion, and his Commerce Clause comments—presented ostensibly to justify why the case implicated the statutory interpretation canons of construing to avoid constitutional and federalism questions—as mere dicta.

Focusing in on the Chief Justice's opinion, what makes it remarkable as statutory interpretation consists of the depth of treatment of the legislative history of the CWA in 1972 and of the Amendments to the CWA in 1977. Artistry with legislative history is a talent of Chief Justice Rehnquist's which has been admired in the past,³² but which he has often suppressed to avoid eliciting separate opinions by Justice Scalia. Justice Scalia has written separately and often shrilly against use of legislative history. In the early 1990s, Chief Justice Rehnquist went along with this textualism and suppressed the urge to analyze legislative history out of deference to Justice Scalia, and only in the late 1990s has he gone so far as to cite legislative history when writing an opinion that Justice Scalia will join.³³ SWANCC may well contain the largest dose of legislative history of any opinion Justice Scalia has swallowed without protest.

This view requires a stance, for the moment, of looking away from what environmentalists might find to be the persuasive statutory interpretation arguments contained in the dissent and in the brief of the United States.³⁴ Faced with these serious points, Chief Justice Rehnquist's opinion must give something to each of his camps. To Justices Scalia and Thomas, he gave the canon of construing to avoid constitutional questions and the comments that the Commerce Clause questions were serious.³⁵ However, to Justices O'Connor and Kennedy, he gave an in-depth treatment of the legislative history.³⁶ The opinion Justices O'Connor and Kennedy signed onto dealt in loving detail with the floor statements of Chairman John D. Dingell (D-Mich.) in the House and Chairman Edmund S. Muskie (D-Me.) in the Senate, and how these lacked clear commitment to regulate SWANCC's kind of wetlands. Chief Justice Rehnquist even seized expressly on the Solicitor General's written concession, based on what the committee chairs had said, that "the legislative history is somewhat ambiguous."³⁷ Far from committing herself to strike down future challenged statutes, Justice O'Connor could say legitimately she has agreed only to read closely a statute's legislative history to see, as with the CWA, just how clearly Congress expressed an intention for regulation to press the limits of Congress' power over intrastate affairs.

[31 ELR 11497]

Returning with this gloss to the specifics of the Chief Justice's constitutional implications, they appear in a different light when viewed from the characteristic stance of Justice O'Connor and her view of the opinion as concerning statutory interpretation. As for Chief Justice Rehnquist's assertion of "States' traditional and primary power over land and water use," that sentiment is music to Justice O'Connor's ears, but not music that she considers disharmonious with federal environmental regulation. Her separate opinion in North Dakota sought a middle ground regarding a state's ability to revoke consents to federal wetland acquisition by use of the following delicate reasoning: "Permanent irrevocable [state] consents would frustrate legitimate state land use planning just as consents revocable at will would frustrate federal protection of migratory waterfowl."³⁸ In other words, she expressed regard for "legitimate state land use planning" but delicately balanced it against "federal protection of migratory waterfowl." So when SWANCC acknowledges the state power, that does not, for Justice O'Connor, create an insuperable barrier against federal action, but only a countervailing factor which allows a court to use interpretive tools to achieve federal moderation. That is what Justice O'Connor preached in her Sweet Home concurrence when criticizing the dissenting views of Chief Justice Rehnquist, Justice Scalia, and Justice Thomas.

A subtler problem concerns Chief Justice Rehnquist's other assertion, his skepticism about whether the migratory bird rule regulates something commercial merely because this particular filling, and most such filling, is commercial in nature, when the rule addresses the filling of wetlands generally. The line Justices Kennedy and O'Connor drew by their Lopez concurrence very much concerned the concept of commerciality. In Lopez, they noted, "neither the actors nor their conduct has a commercial character and neither the purposes nor the design of the statute has an evident commercial nexus."³⁹ Looking closely, Chief Justice Rehnquist's SWANCC opinion reined itself in not to push Justices Kennedy and O'Connor to have to harmonize their joining it with their Lopez concurrence. Just before this point in his opinion, he acknowledged the U.S. arguments, "that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds."⁴⁰ Just after noting that the United States argues the SWANCC landfill is "'plainly of a commercial nature,'" he says "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."⁴¹ So the passage as a whole preserves the uncertainty left by Lopez and Morrison about just how far a majority of the Court will go in rejecting—or accepting—regulation as commercial when, conceptually, it falls in between the least commercial nature of the school- and women-safety issues of those two cases, and the most commercial nature of regulation that focuses solely on commercial activities for commercial goals.

However Chief Justice Rehnquist would make future use of his SWANCC implications, Justice O'Connor could well read the passage as a whole as withholding judgment until Congress and the Corps put forth a statutory-regulatory scheme crafted unmistakably for maximum acceptable use of Congress' commerce power. That fits the actual oral argument before the Court, in which the government's argument about the need to protect national waterfowl populations⁴² was met by the Court's looking to Congress to enact a new statute.⁴³ A way to understand this is to imagine what a future environmentally minded Congress might do to resurrect a form of the migratory bird rule. Just as the CWA takes one track regarding municipal waste treatment plants and another track as to commercial ones, a permitting rule for isolated wetlands—those not adjacent to navigable waters—might take two tracks. It could insist upon a strict view on permit-issuing, as nondeferential as the rule at issue in SWANCC, in the case of commercial activities by commercial entities. For noncommercial entities or noncommercial activities, such as local governmental entities or noncommercial recreational activities, a rule regarding permit-issuing could take a more deferential approach,⁴⁴ although recognizing the need to do something so that the aggregate effect of such entities and activities did not impair the migratory bird populations to the point of seriously affecting the interstate commerce in birdwatching.

Furthermore, the permitting arrangements might pick up on Justice O'Connor's two other pertinent opinions. In line with Justice O'Connor's view of balance in North Dakota, the permitting arrangements might go further in the direction of cooperative federalism than the CWA does.⁴⁵ Similarly, in light of her pragmatic narrowing view in Sweet Home, while a prima facie case for the Corps' permitting authority might be made out by the presence of migratory birds, its jurisdiction might be made rebuttable in noncommercial cases by, for example, a showing that the federal government has not made use of nonregulatory methods [31 ELR 11498] such as easement acquisitions to fulfill its interest, or by evidence regarding the existence of adequate alternative proximate wetlands. When the Court in the 1980s found that Congress had not clearly enough made the federal government subject to environmental laws to overcome sovereign immunity, Congress responded by fine-tuning the statute to make this clear. If Congress brought this same kind of determination to the migratory bird rule, a new statute and regulation might not have unanimous Court support in a subsequent Commerce Clause challenge, but might well have the support of five or six Justices.

If even a revised form of the migratory bird rule itself could have majority support in the Court, then, a fortiori, SWANCC on its own does not call into question the facial constitutionality of the ESA or CERCLA. These statutes warrant their own treatment; here, it suffices to say that as the Court is currently constituted, SWANCC would not put them in jeopardy because it does not signal a hardening of the views of Justices O'Connor and Kennedy on the constitutionality of federal environmental law. SWANCC took a swipe at environmental laws, but it did not cut a destructive swath across them. Congressional statute-drafters simply have to keep icons of the Court's swing Justices on their desk and make regular sacrifices to propitiate them from time to time, and the environmental laws, it may be hoped, will again enjoy good fortune and a safe journey.

1. 121 S. Ct. 675, 31 ELR 20382 (2001).

2. The opinion was, from a constitutional perspective, comprehensively analyzed in William Funk, The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond, 31 ELR 10741 (July 2001) and in Stephen M. Johnson, Federal Regulation of Isolated Wetlands After SWANCC, 31 ELR 10669 (June 2001). Michael Gerhardt agrees that the decision likely does not pose much risk for other environmental laws, but notes that "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." Michael J. Gerhardt. The Curious Flight of the Migratory Bird Rule, 31 ELR 11079 (Sept. 2001). See also Michael P. Healy, Textualism's Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and Chevron, 31 ELR 10928 (Aug. 2001); Robin Kundis Craig, Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency, 31 ELR 10508 (May 2001) (both focusing primarily on administrative law issues).

3. 529 U.S. 598 (2000)

4. 121 S. Ct. at 683-84, 31 ELR at 20384-85.

5. The Corps adopted in 1986 the clarification that its § 404(a) jurisdiction extends to intrastate waters used as habitat by migratory birds that cross state lines. 51 Fed. Reg. 41217 (Nov. 13, 1986). Technically, as the Court notes, this was not a rule adopted by notice-and-comment procedures, but a clarification of a rule previously adopted. 121 S. Ct. at 678, 31 ELR at 20382.

6. 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a).

7. 514 U.S. 549 (1995).

8. 120 S. Ct. 2003 (2001).

9. The U.S. brief is at No. 99-1178, 2000 WL 1041190 (U.S. July 27, 2000), Westlaw, SCT-BRIEF database.

10. No. 99-1178, 2000 WL 1669870 (U.S. Oct. 31, 2000), Westlaw, ORALARG database.

11. 121 S. Ct. at 683, 31 ELR at 20384.

12. Id. (internal citation omitted).

13. Id.

14. Id.

15. Id. (quoting the federal brief).

16. Id.

17. For example, state zoning regulation, and federal conservation, both arose basically as creatures of the Progressive Era and date back roughly about to the same era one century ago. Hence, in an asserted intrusion upon the sphere of state land use regulation by federal environmental interests traceable historically to the federal conservation role, the state role may well not stand out as predating, or primary to, the federal one.

18. 252 U.S. 416 (1920).

19. 121 S. Ct. at 696, 31 ELR at 20389 (quoting 252 U.S. at 435).

20. 452 U.S. 264, 11 ELR 20569 (1981) (citing 121 S. Ct. at 693, 31 ELR at 20388 (Stevens, J., dissenting)).

21. He cited, but did not quote from, an opinion by Justice Ruth Bader Ginsburg in a minor case dealing with whether a regional land use planning authority had sovereign immunity rather than the mere status of a local government. Justice Ginsburg was merely making the point that land use regulation, such as zoning, was traditionally a municipal—as distinguished from a state—activity; the cited opinion in no way asserted that local land use regulation has primacy over federal conservation or environmental regulation. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994).

22. See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978). The dissenting opinion argued that most of the activities regulated by the Corps' migratory bird rule share this kind of commercial characteristic, particularly because the Corps did not assert a general power of domain over SWANCC's wetland but rather just permitting authority for SWANCC's activity of discharging fill into it, an activity typically done for commercial reasons. In other words, when people perform recreational and arguably noncommercial activities in wetlands, there may not be reason for federal Commerce Clause regulation, but filling in wetlands is more often for commerce than for fun.

23. 121 S. Ct. at 683, 31 ELR at 20384.

24. Id. at 684, 31 ELR at 20385.

25. See, e.g., Gerhardt, supra note 2, at 11082-83; Funk, supra note 2, at 10768-69; Johnson, supra note 2, at 10675-76.

26. 514 U.S. at 568.

27. It cited New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992) (opinion for the Court by O'Connor, J.) and Federal Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742, 12 ELR 20896 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part).

28. See Charles Tiefer, Did Eastern Enterprises Send Enterprise Responsibility South?, 51 ALA. L. REV. 1305, 1310 & n.26 (2000).

29. 515 U.S. 687, 25 ELR 21194 (1995).

30. 460 U.S. 300, 13 ELR 20312 (1983).

31. Id. at 321, 13 ELR 20319.

32. Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 WIS. L. REV. 206, 217; Thomas W. Merrill, Chief Justice Rehnquist, Pluralist Theory, and the Interpretation of Statutes, 25 RUTGERS L.J. 621 (1994). I am indebted to Professor Merrill for recognizing the significance in this context that Chief Justice Rehnquist received two masters' degrees in political science. See id. at 633 n.32. The public is familiar with Chief Justice Rehnquist's having taken up, as a hobby, writing well-regarded political history books on subjects ranging from impeachment to the Civil War.

33. Tiefer, supra note 32, at 229.

34. The dissent noted that the Chevron deference principle supports the migratory bird rule. 121 S. Ct. at 684, 31 ELR at 20385 (Stevens, J., dissenting). And, the dissent quotes long sections of the Court's previous opinion on the applicable section of the CWA, United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985), to hammer home its contention that the majority violates the sacred principle in statutory interpretation of stare decisis.

35. See Tiefer, supra note 32, at 241, 243, 249 (showing how Justice Scalia favors this canon in part to send constitutional signals, and how Chief Justice Rehnquist sometimes disfavors it for just that reason).

36. It is no more correct to treat Justice O'Connor as fully subscribing to the constitutional implications of the majority opinion than to treat Justice Scalia as fully subscribing to the treatment of legislative history. The opinion is like the movie Rashomon: if four of the Justices in the majority were asked separately to describe the opinion that they seemingly agreed upon, listeners would think they were discussing four different opinions.

37. SWANCC said "indeed, respondents admit that the legislative history is somewhat ambiguous. See Brief for Federal Respondents 24." 121 S. Ct. at 680 n.3, 31 ELR at 20383 n.3. The Solicitor General's brief had said that "the remarks of individual legislators may create a degree of ambiguity on this point (by negative implication, rather than contradiction)" although "the 1972 legislative history taken as a whole indicates that Congress did not intend to restrict the Act's coverage to waters that satisfy traditional standards of navigability." Brief for Federal Respondents, supra, at 24. It must be remembered that the 1972 CWA started out as amending a powerful history of federal legislation, regulation, and common law built around the concept of navigability rather than comprehensive wetlands regulation, and that Senator Muskie's public works committee was the committee in the Senate with jurisdiction over public works on navigable waters, rather than the committee with jurisdiction over commerce.

38. 460 U.S. at 322, 13 ELR at 20320 (O'Connor and Rehnquist, JJ., concurring in part and dissenting in part).

39. 514 U.S. at 580 (Kennedy and O'Connor, JJ., concurring).

40. 121 S. Ct. at 683, 31 ELR at 20384.

41. Id.

42. A revealing exchange was opened by Deputy Solicitor General Larry Wallace, about the broad waterfowl population problem:

Much of the battle would be about the so-called prairie potholes in the Dakotas and adjoining states where about 50 percent of the waterfowl in this country breed. Under petitioner's position, as I understand it, the commerce power would enable Congress to protect the winter habitat of duck species and other waterfowl in the Chesapeake Bay area . . . but not to protect the summer breeding habitat of these same waterfowl.

Oral Argument Transcript, 2000 WL 1669870, supra note 10, at *38.

43. Immediately after the just-quoted comment about the waterfowl dependent upon prairie potholes, one of the Justices remarked about the position of others leaning towards reversal:

I think his position is not that the commerce power doesn't allow you to protect [those waterfowl]. It's that the navigable waters aspect of the commerce power doesn't allow you to protect them, and if Congress wants to come back and exert its commerce power generally, it would be a different issue.

Id. at *38-*39.

44. The kind of consultative mechanisms that have reduced federal-state conflict regarding endangered species could be available for federal-state differences regarding wetland fill permits affecting migratory birds.

45. The United States and the dissent both made the point that the CWA allows states to take over permitting. Illinois had not done so in this case. A potential state role not attractive enough for the state to embrace may not be enough for Justice O'Connor. Perhaps those states that do not take over in general the burden of permitting must have some protective or reverse-preemptive role, particularly when, as in SWANCC, those being denied permits are connected with local government.