The Commerce Clause pendulum: Will federal environmental law survive in the post-SWANCC epoch of "new federalism"?

AuthorTanabe, Jamie Y.
PositionSolid Waste Agency of Northern Cook County v. United States Army Corps of Engineers
  1. INTRODUCTION

    Our nation is founded upon principles of federalism that require a delicate equilibrium between federal and state powers. (1) Since our nation's birth, however, these powers have been in constant conflict over their jurisdiction on issues ranging from civil rights to gun control. Federalism is a concept embedded in federal legislation and affects the lives of all Americans, uniting the efforts of diverse groups such as the National Gay and Lesbian Task Force and the National Council of Jewish Women. (2) Recently, federalism has played an increasing role in the regulation of the environment and has brought forth the looming question of how much power Congress has under the Constitution to set national environmental standards and take other measures to protect our nation's natural resources.

    The federal government's regulation of the environment is a relatively recent phenomenon that developed after a history of failure by the states to effectively protect our nation's resources. (3) Until the 1970s, environmental regulation was mainly a local concern managed by the states and governed by common law. (4) Today, the primary approach to environmental regulation is a "cooperative federalism" model whereby federal agencies are responsible for establishing national environmental standards, and qualified states are given the responsibility of implementation and enforcement. (5) This seemingly healthy balance between state and federal power gave rise to a plethora of environmental regulation in the 1970s and early 1980s, but has raised considerable debate today concerning the principles of federalism. Until recently, Congress and federal agencies expanded environmental regulation, and the United States Supreme Court consistently deferred to agency decisions unless found to be "arbitrary, capricious, or manifestly contrary to the statute." (6) In the past decade, however, the Supreme Court has taken a closer look at Congress's exercise of its Commerce Clause power and has invalidated several federal laws for violating basic principles of federalism. (7) This movement toward federal devolution reached the realm of environmental law in the Supreme Court case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). (8) The Court's five-to-four decision in SWANCC struck down the "Migratory Bird Rule" as overreaching the authority of the United States Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (CWA). (9) The decision substantially contracted the Corps's jurisdiction to regulate wetlands. (10) This decision may mark the turning point in the federal government's power to regulate environmental affairs by reinvigorating the push for states' rights and traditional concepts of federalism.

    The next decade will be challenging for federal environmental law in light of the Supreme Court's recent federalism decisions. (11) The pendulum that once swung so strongly in favor of federal environmental regulation has begun to swing back with the SWANCC decision. With the Supreme Court's revival of federalism and the Bush administration's inclination toward states' rights, invalidation of environmental laws for violating the Commerce Clause is likely to increase. (12) This Comment will discuss the Court's decision in SWANCC and its impact on federal environmental law. Part II begins with a basic background of the environmental federalism debate and the history of federal environmental law. This Part will also outline the Supreme Court's recent Commerce Clause jurisprudence, its decision in SWANCC, and how various groups have responded to the decision. Part III analyzes Congress's Commerce Clause power to regulate noneconomic activity in light of SWANCC, and the Court's recent treatment of the doctrine of administrative deference established in Chevron U.S.A., Inc. v. National Resources Defense Council (Chevron v. NRDC). (13) This section will also discuss the repercussions of SWANCC and the Court's renewed federalism on other environmental laws and Congress's ability to enact environmental legislation in the next decade. This Comment concludes that the Supreme Court's return to principles of federalism coupled with growing support for increasing state jurisdiction over environmental affairs may ultimately lead to federal devolution of environmental law and a state system of regulation.

  2. ENVIRONMENTAL FEDERALISM

    The concept of federalism emphasizes a separation of powers between the central national government and individual state governments. (14) As James Madison stated, "[t]he powers delegated ... to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite." (15) This system of dual sovereignty was designed to limit the spheres of both the central and state governments to assure a "double security" for citizen liberty. (16) This concept of federalism, however, creates a tension in aspects of government where state and federal concerns converge. Environmental law is one such area where state and federal powers are in constant conflict over their jurisdiction.

    Federal environmental law evolved through congressional efforts to enact a series of major environmental statutes that set uniform national standards. The constitutional foundation for Congress's power to regulate these areas is the Commerce Clause, which provides Congress with the authority to regulate commerce among the several states. (17) The question prompted by our system of federal environmental law is whether the power to regulate the environment is one that falls under Congress's Commerce Clause power or one traditionally reserved to the several states.

    When analyzing the effect of the Court's federalism decisions on environmental law, it is important to consider the law-making process. To address environmental concerns, Congress first enacts a general environmental statute, codified in the United States Code, pursuant to its power under the Commerce Clause. (18) The statute will typically delegate the responsibility of implementation and enforcement to a particular federal agency, which then issues regulations explaining the particulars of the statute. (19) These regulations must follow procedural requirements established by the Administrative Procedure Act (APA); (20) the regulations are then published in the Federal Register and ultimately codified in the Code of Federal Regulations. (21) Federal Commerce Clause jurisprudence applies only to acts of Congress. In contrast, the review of federal agency regulations typically involves statutory interpretation to determine whether Congress intended the agency's interpretation of the statute. (22) Courts will normally apply the doctrine of administrative deference when Congress intentionally leaves a gap for the agency to fill, and uphold the regulation if the agency's interpretation is reasonable and consistent with congressional intent. (23)

    1. The History of Federal Environmental Law

      Federal regulation of the environment emerged after a history of failure by the states to effectively protect natural resources and solve transboundary problems. (24) Until the mid 1900s, environmental regulation was left largely in the hands of state and local governments and was based primarily on the common law of nuisance and local ordinances. (25) Without uniform national standards, these local programs were often poorly coordinated and enforced in a haphazard manner. (26) With little regard for neighboring states, transboundary pollution was a typical occurrence in the early 1900s and resulted in public outcry for tighter public health standards and an increase in litigation between states. (27) Moreover, environmental consciousness and biodiversity were concepts yet to be realized, and federal legislation promoted the use and development of natural resources rather than preserving them. (28)

      1. The Environmental Decade

        Widespread concern for public health, recreation, and the environment resulted from several catalysts that inspired the movement toward environmental consciousness. After World War II, the rise in industrialism contributed to increased pollution that, although still regarded as a matter of state concern, captured the attention of Congress. (29) In 1962, Rachel Carson published the book Silent Spring, alerting the nation to the bioaccumulative effects of pesticides. (30) Disasters that earned worldwide attention--such as Japan's mercury poisoning tragedy, and a proposal to dam the Grand Canyon--also fueled the development of our nation's environmental consciousness. (31) These factors set the stage for the 1970s, which has come to be known as the "environmental decade." (32)

        The seventies gave rise to five major federal statutes that provide much of the foundation for modern environmental law. President Richard Nixon signed the National Environmental Policy Act (NEPA) (33) into law in 1970. (34) NEPA established "the continuing policy of the Federal Government ... to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans." (35) NEPA achieves its objective by requiring federal agencies to prepare an Environmental Impact Statement (EIS) on "major Federal actions significantly affecting the quality of the human environment." (36) The purpose of the EIS is to force federal agencies to incorporate the potential impact of the proposed action on the environment into the decision-making process. (37)

        The modern Clean Air Act of 1970 (CAA) (38) and Clean Water Act of 1972 (CWA) (39) were also enacted in the environmental decade by substantial congressional amendments to their predecessors. (40) Both acts protect our nation's resources by setting national standards and establishing a federal...

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