| Supreme Court Limits Scope of Clean Water Act | |
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Like many federal regulations, the Clean Water Act takes much of its authority from Article I, Section 8, clause 3 of the U.S. Constitution, giving Congress the power, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
This clause is used as a basis for enforcing several sweeping federal laws over the laws and actions of state and local governments. Gun control, civil rights, highway safety and environmental protection are but a few federal laws drawing their nationwide authority either partly or wholly from the interstate commerce clause.
For example, suppose the state of Louisiana decided to build a dam across the Mississippi River. Clearly, this would have a negative economic impact on every other state that uses the river to transport goods across state lines to the Gulf of Mexico. In this case, a denial of a permit for the dam by the Corps of Engineers based on the interstate commerce clause would be inarguably valid as preventing harm to other states.
In the case of the Chicago area landfill, while the waterways on the subject property were only seasonal and not shared by another state, allowing the permit would set a precedent under which other local governments might undertake similar projects on waterways that were, indeed, important to interstate commerce.
To five Supreme Court Justices, however, that argument just didn't hold water, as evidenced in Chief Justice Rehnquist's remarks in the majority decision:
"Indeed, the Corps’ original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined ... 'navigable waters' to mean 'those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.'" (Emphasis on "original" added by Chief Justice Rehnquist.)
The case is Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 99-1178. Joining
Rehnquist in the majority decision were Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day
O'Connor. Justices David H. Souter,
Stephen J. Breyer, Ruth Bader Ginsburg and John Paul Stevens dissented. •
View or download a copy of
the Supreme Court's decision.
(Requires the free Adobe pdf file reader. Get it here.)
