Impact of Solid Waste Agency Decision on the Tenth Circuit and Environmental Laws

• Jurisdiction: United States,Federal
• Citation: Vol. 30 No. 7 Pg. 109
• Pages: 109
• Publication year: 2001

30 Colo.Law. 109 Colorado Lawyer 2001.

2001, July, Pg. 109. Impact of Solid Waste Agency Decision on the Tenth Circuit And Environmental Laws

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109

Vol. 30, No. 7, Pg. 109

The Colorado Lawyer
July 2001
Vol. 30, No. 7 [Page 109]

Specialty Law Columns
Natural Resource and Environmental Notes
Impact of Solid Waste Agency Decision on the Tenth Circuit And Environmental Laws
by Arthur P. Mizzi

The U.S. Supreme Court continued its trend of restricting the role of the federal government in favor of promoting state's rights in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC").1 SWANCC held that the Clean Water Act ("CWA") did not authorize the U.S. Environmental Protection Agency ("EPA") or the U.S. Army Corps of Engineers ("ACOE") to extend CWA jurisdiction over isolated intrastate waters through the Migratory Bird Rule ("MBR"). The MBR had extended the CWA to isolated waters by defining the "waters of the United States" as "waters which are or would be used as habitat by birds protected by the Migratory Bird Treaties or which would be used as habitat by other migratory birds which cross state lines."2

Prior to SWANCC, this extension of CWA jurisdiction had been subject to several judicial challenges, but with the exception of the U.S. Court of Appeals for the Fourth Circuit in U.S. v. Wilson,3 other federal circuits had upheld the expanded jurisdiction.4 In a five-to-four decision, split along the usual ideological lines, SWANCC avoided a direct extension of Commerce Clause cases such as U.S. v. Lopez5 and U.S. v. Morrison6 into environmental jurisprudence by its holding on statutory interpretation.7

Lopez and Morrison held that separate federal statutes were unconstitutional because they exceeded the reach of the Commerce Clause. The essence of their holdings was that the connection between the regulated activity and interstate commerce was too tenuous. In an attempt to extend Lopez and Morrison to environmental statutes, plaintiffs have argued that the relationship between certain environmental regulations and interstate commerce is too remote to substantially impact interstate commerce. SWANCC avoided this issue by relying on the statutory interpretation

SWANCC has the potential to be one of the most important modern environmental decisions because it may remove nearly 20 percent of the country's waters from federal protection, and it provides a recipe for restricting the jurisdiction of other federal environmental statutes. This article reviews SWANCC and its potential impact on Tenth Circuit case law and on other environmental statutes

Overview of the SWANCC Decision

In SWANCC, twenty-three municipalities formed a consortium ("Consortium") for the disposal of solid waste.8 To this end, the Consortium purchased a 533-acre parcel and proposed to use 410 acres for the disposal of compacted and baled solid waste. Over fifty years ago, almost 300 of those acres had been used for sand and gravel strip mining. The abandoned trenches and other depressions formed approximately 200 permanent and seasonal ponds. These ponds served as a habitat for federally protected migratory birds, including the second largest breeding colony of great blue herons in northeastern Illinois

The Consortium applied for the appropriate state and federal permits, including a CWA § 404 dredge and fill permit for the placement of baled solid waste. ACOE initially declined jurisdiction because it found no wetlands or vegetation characteristic of wetlands.9 However, ACOE asserted its jurisdiction under the MBR after learning that the site supported a variety of migratory birds. The Consortium attempted to work with ACOE by offering to preserve the heron rookery and to mitigate the displacement of the migratory birds. Although the Consortium's proposals satisfied the Illinois EPA, the ACOE denied the CWA § 404 permit because: (1) the proposal was not the "least environmentally damaging, most practical alternative" for disposal of the non-hazardous solid waste; and (2) the proposal failed to set aside sufficient remediation funds, potentially endangering the public drinking water supply.10

Challenge to Definition of Navigable Waters

In response, the Consortium challenged ACOE's CWA authority to regulate seasonal ponds as "navigable waters." The District Court for the Northern District of Illinois held for ACOE.11 The U.S. Court of Appeals for the Seventh Circuit concluded that the Commerce Clause provided CWA jurisdiction because millions of people spend over one billion dollars hunting, trapping, and observing migratory birds. The court also sustained arguments under the "cumulative impact doctrine" of Wickard v. Filburn,12 where a single act, which by itself might not significantly impact interstate commerce, may be regulated if its aggregated cumulative effect substantially impacts interstate commerce.13 The U.S. Supreme Court granted certiorari to resolve the split between this decision by the Seventh Circuit and the Fourth Circuit's decision in Wilson.

Historically, the split between the circuits evolved from the Federal Water Pollution Control Act of 1972 ("1972 Act"), which provided that Congress exerted jurisdiction over all "navigable waters" but defined navigable waters vaguely as the "waters of the United States."14 Because the 1972 Act did not provide guidance on the meaning of...