33 Trends 1 (2001-2002)

handle is hein.journals/trends33 and id is 1 raw text is: 


Environmental law in t

Supreme Court during i

October 2000 term


BY ROBERT V. PERCIVAL

 W        hile Congress once was the primary agent
          of change for environmental law, attention
          has now turned to the courts, which are
 hearing a host of challenges to environmental regu-
 lation, as illustrated by the Supreme Court's most
 recent term. The court decided three major cases
 involving constitutional challenges to environmental
 regulation and a nonenvironmental case with impor-
 tant implications for environmental justice 'claims.

 Solid WasteAgency of Northern Cook County v.
 U.S. Army Corps of Engineers
    In Solid Waste Agency of Northern Cook County
 v. US. Army Corps of Engineers (SWANCC) the
 Court considered whether Congress has the  cnsti-
 tutional authority to regulate isolated wetlands used
 by migratory birds. SWANCC was an outgrowth of
 the Court's decision in United States v. Lopez, 514
 U.S. 549 (1995), which held that an intrastate activ-
 ity must substantially affect interstate commerce
 before Congress could regulate it under its com-
 merce powers. Relying on Lopez, the petitioner in
 SWANCC argued that Congress could not require it
 to obtain a federal permit under  404(a) of the
 Clean Water Act before it filled an abandoned sand
 and gravel pit to create a landfill. The Seventh
 Circuit had upheld application of  404(a) to the
 isolated wetland, finding that because it served as
 habitat for migratory birds, substantial effects on
 interstate commerce could be inferred from the mil-
 lions of hunters and -bird watchers Who travel inter-
 state in pursuit of birds.
   Deciding SWANCC by the same 5-4 lineup that
 prevailed in Lopez, the Supreme Court ducked the
 constitutional issue by interpreting  404(a) narrow-
 ly. The Court found that Congress had not clearly
 indicated its intent to apply  404(a) to isolated wet-
 lands visited by migratory birds. To avoid what it
 described as' significant constitutional and federal-
 ism questions the Court held that  404(a)'s juris-
 dictional predicate - waters of the United States -
 did not include isolated wetlands where migratory,
 birds are present. SWANCC thus narrows the reach
 of the federal Clean Water Act, while leaving
 important questions unanswered concerning the
 ultimate effect of Lopez on federal authority to pro-
 tect the environment. It remains unclear how the
 substantially affects test is to be applied and
 whether Congress has lesser constitutional authority

 Robert V Percival is a projessor of lav, the Robert
Stanton Scholar and the director of the Envimronmental Law
Program at the University of MarylandSchool of Law


to protect the environment from destruction by non-
commercial activities than by commercial ones. The
Court appears reluctant to address these questions,
for it declined to review other decisions narrowly
rejecting similar constitutional challenges to the
Endangered Species Act.

Whitman v. American Trucking Associations
   While constitutional concerns persuaded the
Court in SWANCC to reinterpret the Clean Water
Act to narrow its scope, in American Trucking the
Court decisively rejected an effort to use constitu-
tional concerns as a justification for reinterpreting
the Clean Air Act. American Trucking involved
challenges to national air quality standards issued
by the EPA under the Clean Air Act in 1997. The
standards were struck down by the D.C. Circuit not
because it found them to be unreasonable, but
because it found that Congress had not been specif-
ic enough in telling the EPA how to set them. The
court's surprising rationale -that the Clean Air
Act's directive to provide an adequate margin of
safety could unconstitutionally delegate legislative
power to the EPA - threatened to invalidate many
other federal regulatory schemes.
   When the EPA appealed the decision to the
Supreme Court, opponents of the standards argued
that the Court could avoid deciding the nondelega-
tion issue by reinterpreting the Clean Air Act to
require the EPA to set standards on the basis of
cost-benefit analysis. In their view, cost-benefit
analysis could provide the intelligible principle
the D.C. Circuit had found lacking to constrain the
EPA's discretion and avoid nondelegation problems.
However, for decades, the D.C. Circuit had inter
preted the Clean Air Act not to permit -the EPA to
consider costs when it set air quality standards to
protect public health. That feature of theAct
seemed so clear that even the D.C. Circuit judges
who struck down the standards had quickly dis-
missed the claim that the EPA should consider costs
when setting air quality standards.
   Undaunted by legal precedent, industry groups
assembled a legal Who  Who to write Supreme
Court briefs assailing the Clean Air Act. General
Electric hired Harvard constitutional law expert
Laurence Tribe, who authored an impassioned plea
for the Court to strike down the Act on nondelega-
tion grounds. Dozens of the nation's most eminent
economists filed an unusual amicus brief urging the
Court to find a way to rewrite the law to require
cost-benefit analysis.
   However, the Court unanimously rejected the
                            (Continued on page 6)
                         0Printed on recycled paper


ptember/October 2001
lume 33, Number 1

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