Wetlands, waterfowl, and the menace of Mr. Wilson: commerce clause jurisprudence and the limits of federal regulation.

• Author: Adler, Jonathan H.

1. INTRODUCTION

   To some, James J. Wilson is "a conscientious, environmentally sensitive" builder of planned communities known for their parks, scenic trails, and substantial open space.(1) One of his most recent developments, St. Charles, in Charles County, Maryland, even provided for the preservation of seventy-five acres of wetlands.(2) "In my experience with developers all over America, I have met few who have as much concern for the environment as Jim Wilson," commented one of his colleagues.(3)

   To others, however, Wilson was a menace to the environment, a greedy developer who, in his lust for profit, "wantonly destroy[ed]"(4) approximately fifty acres of wetlands that were "very critical to the continued health of the Potomac River watershed and the Chesapeake Bay."(5) Wilson began the development of St. Charles in 1976, at which time the U.S. Army Corps of Engineers (the Corps) determined that "[t]he construction of St. Charles [C]ommunities will have no impact on our area of responsibility."(6) Fourteen years later, after a significant expansion of the Corps's asserted jurisdiction over wetlands,(7) federal officials thought otherwise. Wilson was notified to cease construction on areas determined to be jurisdictional wetlands. Wilson complied, but turned around and slapped the federal government with a lawsuit demanding compensation for the regulatory taking of his land.(8)

   In 1995, Wilson and his company, Interstate General Company (IGC), were indicted on four felony and misdemeanor counts for filling wetlands w without a federal permit between 1988 and 1993. Wilson's "egregious conduct"(9) made him an environmental criminal. "This case shows that wetlands are critical environmental resources," declared Environmental Protection Agency Regional Administrator W. Michael McCabe, adding "[t]he American people will not tolerate reckless lawbreaking, especially by those who know the rules."(10)

   After a seven-week trial, Wilson and IGC were found guilty of "knowingly discharging fill and excavated material into wetlands of the United States"(11) in violation of section 404 of the Clean Water Act.(12) On June 17, 1996, a federal judge sentenced Wilson to 21 months in prison and imposed a $1 million fine.(13)

   Wilson's conviction did not stand for long. On appeal, Wilson alleged that the regulations promulgated by the U.S. Army Corps of Engineers to regulate wetlands were invalid. In particular, Wilson charged that the Corps did not have jurisdiction over all wetlands that merely "could affect" interstate commerce,(14) as this regulation implied a "limitless view of federal jurisdiction."(15) Regulatory authority of such a broad scope, Wilson argued, would violate the Supreme Court's ruling in United States v. Lopez,(16) which reaffirmed the presence of constitutional limits of federal regulatory jurisdiction.(17) The Court of Appeals for the Fourth Circuit agreed, finding that the regulation was "unauthorized by the Clean Water Act as limited by the Commerce Clause."(18) The Corps's regulations defined "waters of the United States' to include intrastate waters that need have nothing to do with navigable or interstate waters" and therefore "expand[ed] the statutory phrase ... beyond its definitional limit."(19) In other words, the Corps did not have jurisdiction over the parcels that Wilson drained for his development. His conviction was reversed and remanded to the district court for a new trial.(20)

   United States v. Wilson was not the first time a federal appeals court considered whether isolated wetlands could be regulated by Congress under the Commerce Clause,(21) and it is unlikely to be the last.(22) The federal wetlands regulations promulgated under section 404 of the Clean Water Act(23) have been one of the more contentious areas of federal environmental policy for the past several years, spawning substantial litigation(24) and political controversy.(25) Lopez is one of several recent decisions indicating that the Supreme Court will actively enforce constitutional limits on federal regulatory authority.(26) This creates an opportunity for those who wish to restrict the reach of federal environmental regulations.(27)

   In the wake of the Lopez decision, commentators noted that federal wetlands regulation was one of the federal environmental programs most vulnerable to a Commerce Clause challenge.(28) Although most of the courts that have considered Commerce Clause challenges to section 404 have upheld the Corps's regulations, no federal appeals court has given substantial attention to the matter since the Lopez decision in 1995.(29) The Wilson decision, however, assuming that the reach of federal wetland regulations is constrained by the Commerce Clause, conflicts with prior appeals court holdings on this issue. Thus, the circuits appear to be split on the question of whether the regulation of isolated wetlands is within the scope of Congress's Commerce Clause power.

   The purpose of this Article is to assess the extent to which the Commerce Clause doctrine explicit and implicit in the Lopez decision limits the federal government's constitutional authority to regulate wetlands, particularly those wetlands that are isolated or not otherwise near or adjacent to a navigable water of the United States. There is little doubt, as Richard Lazarus noted, that the current wetland regulations, as written, are "clearly out of bounds post-Lopez."(30) The relevant question is thus whether the dubious constitutional validity of the Corps's regulation is an artifact of its loose wording, or a function of what the Corps is seeking to accomplish.(31)

   In addition, there is reason to conclude that for some judges and justices, deciding Commerce Clause cases is not purely a matter of interpreting the relevant constitutional text and history; Commerce Clause jurisprudence is no longer based upon the plain meaning of Article I, section 8 of the Constitution, if it ever was. Thus, strong textual arguments for scaling back federal power alone may be insufficient to convince a majority of the present Court to invalidate a prominent federal program. As Justice Kennedy noted in his Lopez concurrence, a sharp departure from post-New Deal jurisprudence would upset settled expectations.(32) The fact that few federal courts have taken Lopez as a green light to question the constitutional legitimacy of well-established federal programs suggests some courts believe "the court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point."(33) Therefore, the practical impact of limiting federal jurisdiction over wetlands bears on whether such limits will be found by the courts. Whether such practical considerations form the basis of a principled decision or not, they are clearly relevant to the decision makers in many courtrooms.(34) Thus, this Article also questions whether constraining the federal government's regulatory authority will compromise wetland conservation efforts.

   Part II of this Article briefly reviews the Supreme Court's Commerce Clause jurisprudence culminating in the Lopez decision and its subsequent application by federal courts. Part III provides background on wetlands a nd the evolution of federal regulatory efforts to protect these valued environmental resources. Part IV applies the Commerce Clause tests explicit and implicit in Lopez to the regulation of wetlands by the federal government. Finally, Part V assesses the likely environmental impact of restricting the federal government's ability to regulate wetlands, and it suggests that limiting wetlands regulation under Lopez, as was done in Wilson, need not have dire ecological consequences and could even yield environmental improvements.

2. THE INTERSTATE COMMERCE CLAUSE

   It is a fundamental principle of constitutional law that "[t]he Constitution creates a Federal Government of enumerated powers."(35) Because the legitimacy of the federal government rests upon the consent of the governed, the federal government only has those powers that have been delegated to it by the people. Indeed, the basis of judicial review of congressional statutes is premised on the fact that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the [C]onstitution is written."(36)

   Article I of the Constitution vests Congress with substantial, albeit limited, powers. Perhaps the most expansive power delegated to Congress is the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."(37) This clause, commonly known as the "Commerce Clause," could perhaps be better termed the "Interstate Commerce Clause," as it vests Congress with the power to regulate commerce "among the several States," and not commerce generally.(38) Indeed, if the regulation of all commerce had been the Framers' intent, it would have been simple for them to spare the additional words that characterize the sorts of commerce that Congress could regulate.(39) "The Commerce Clause is ... clear and cannot be interpreted as a grant of authority without limits," notes Judge Alex Kozinski.(40) Nonetheless, until 1995, the Commerce Clause had been read as the grant of near-plenary power for over half a century.

   Despite its clear textual limitations, the Commerce Clause is postulated as the source of Congress's power to regulate most environmental matters. Revisiting the scope of the Commerce Clause power therefore means questioning whether Congress has the power to enact environmental regulations at its discretion.(41) Since the Supreme Court's decision in Lopez, there have been several Commerce Clause challenges to various environmental laws.(42) Wilson, however, is the only case to date in which a federal appeals court has looked favorably on a Commerce Clause challenge to environmental regulations.(43)

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