Rapanos v. United States / Carabell v. Army Corps of Engineers

[A18]

http://docket.medill.northwestern.edu/archives/003126.php

Subject: Clean Water Act, wetlands, navigable water, Commerce Clause

Questions presented: (1) Whether the U.S. Army Corps of Engineers acted reasonably in interpreting the term "waters of the United States" as it appears in the Clean Water Act (CWA), 33 U.S.C. 1362(7), to encompass a wetland area that is separated from a tributary of a traditional navigable water by a narrow man-made berm, where evidence in the record reflected the presence of at least an occasional hydrologic connection between the wetland and the adjacent tributary? (2) Whether the application of the CWA to the wetland at issue in this case is a permissible exercise of congressional authority under the Commerce Clause?

6th Circuit opinion in Rapanos (July 26, 2004)
6th Circuit opinion in Carabell (Sept. 27, 2004)

Discuss.

[True Federalist (진정한 연방 주의자)]

Obviously the Supreme Court has taken the case so as to settle some conflicting opinions of how broad a reach the CWA has.  I don't see the Court ruling in favor of any of the plaintiffs on Constitutional grounds.  It might choose to rule in favor of some plaintiffs on the basis of an overbroad interpretation of the CWA by the CoE, but I doubt it.  My instincts here are to uphold the lower court decisions, but I would be persuadable.

[Emsworth]

I am not sufficiently familiar with the Clean Water Act to say whether this particular wetland is encompassed by its terms. However, I do believe that applying this law to non-navigable waters would violate the Constitution. If this case were decided according to the original meaning of the commerce clause, then it is obvious that this law would be unconstitutional. But this would be the case even if we apply modern commerce clause precedents.

Under United States v. Lopez, the commerce clause allows Congress to regulate: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) actions that substantially affect interstate commerce. As to (1), this wetland is admittedly non-navigable. Since no goods are transported on the wetland, it cannot be part of the channels of interstate commerce. As to (2), an instrumentality of interstate commerce is a person or thing involved in interstate commerce. Needless to say, this wetland is neither. And finally, as to (3), this wetland has no relation whatsoever to commerce of any kind, let alone a substantial relation to commerce among the states.

[True Federalist (진정한 연방 주의자)]

Personally, I think a reasonable case can be made for the constitutionality of environmental legislation based on the "general Welfare" proviso of Article I section 8 clause 1, but I'm aware that that proviso has not been made much use of.

As for your point (3), actions that affect a wetland that is a tributary of a navigable water are clearly capable of affecting that navigable water. Whether regulating the use of such wetlands is the best way to achieve the protection of navigable waters is a decision that should be left to the legislative power and not the judicial.

[Emsworth]

As for your point (3), actions that affect a wetland that is a tributary of a navigable water are clearly capable of affecting that navigable water. Whether regulating the use of such wetlands is the best way to achieve the protection of navigable waters is a decision that should be left to the legislative power and not the judicial.

A remote relationship to interstate commerce is insufficient. There must be a "substantial" relation between commerce and the activity being regulated. Polluting a non-navigable wetland does not have any substantial relation to commerce.

Theoretically, any puddle could eventually become part of a river. That does not mean, however, that Congress has the power to regulate every drop of water in the country.

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If the words "to ... provide for the common defence, and general welfare of the United States" constitute a distinct and substantial power, then it is clear that the federal government is not one of enumerated powers, but one of general and plenary authority. It is quite plain that the words "general welfare" extend far, far beyond anything else contained in Section 8. These words, if construed as an independent grant of power, render the remainder of Section 8 utterly superfluous.

Therefore, the general welfare clause is not a source of any new power, but rather nothing more than a qualification or limitation on the power to tax.

[True Federalist (진정한 연방 주의자)]

As for your point (3), actions that affect a wetland that is a tributary of a navigable water are clearly capable of affecting that navigable water. Whether regulating the use of such wetlands is the best way to achieve the protection of navigable waters is a decision that should be left to the legislative power and not the judicial.

A remote relationship to interstate commerce is insufficient. There must be a "substantial" relation between commerce and the activity being regulated. Polluting a non-navigable wetland does not have any substantial relation to commerce.

Theoretically, any puddle could eventually become part of a river. That does not mean, however, that Congress has the power to regulate every drop of water in the country.

Pollution has a very substantial relation to commerce.  Whether enough i's have been dotted and t's crossed to indicate that these wetlands have a connection to interstate commerce is what is at question here.  Given the current broad interpretation of interstate commerce, I doubt if the navigable waters angle matters here Constitutionally, but rather because of how Congress chose to define the scope of coverage of the CWA.

Given the current and future composition of the court, I strongly doubt if any grand new case law will be established here.  I expect the decision will be extremely narrow and likely inapplicable beyond the CWA.

[Emsworth]

I should add that, under U.S. v. Morrison, only economic activities may be regulated on the grounds that they have a substantial relation to interstate commerce. Pollution is clearly a non-economic activity; it involves no exchange of money. Therefore, the regulation must only be judged under the first two prongs of the Lemon test, which it fails (as I noted above).

[True Federalist (진정한 연방 주의자)]

I should add that, under U.S. v. Morrison, only economic activities may be regulated on the grounds that they have a substantial relation to interstate commerce. Pollution is clearly a non-economic activity; it involves no exchange of money. Therefore, the regulation must only be judged under the first two prongs of the Lemon test, which it fails (as I noted above).

I don't follow you here at all.  Clearly the economic activity that causes the pollution involves an exchange of money and can thus be regulated under your argument.

[Emsworth]

I don't follow you here at all.  Clearly the economic activity that causes the pollution involves an exchange of money and can thus be regulated under your argument.

Congress is not attempting to regulate the underlying economic activity, but merely the act of doing something to a wetland. Economic activities include such things as hiring an employee or selling a product; polluting can occur even if no money changes hands.

[A18]

Therefore, the regulation must only be judged under the first two prongs of the Lemon test, which it fails (as I noted above).

The Lemon test? That's the Establishment Clause. I think you mean Lopez.

[True Federalist (진정한 연방 주의자)]

Well, it's obvious we disagree here.  Dealing with enviromental issues is one area where anarcho-libertarian theology clearly fails because it involves people who profit from doing a small amount of harm to a large number of people.  Fixing the problem clearly requires government intervention, the only questions being at what level and in what form.  Because environmental issues don't stay neatly confined to political boundaries, I feel it is best that it be handled at a national level.  If there were a trustworthy international body, I'd even want it handled there, but there is no such organization at present.

[Emsworth]

Dealing with enviromental issues is one area where anarcho-libertarian theology clearly fails because it involves people who profit from doing a small amount of harm to a large number of people.

Who mentioned libertarianism? This has nothing to do with libertarianism, and everything to do with what the Constitution says about federalism.

[True Federalist (진정한 연방 주의자)]

I'm trying to come up with how you have come to the absurd conclusion that pollution and commerce have no direct relation.  The only viewpoint that I could think of that would explain that is a literalist libertarianism one that only see economic consequences when gold and silver change hands.

[Emsworth]

I'm trying to come up with how you have come to the absurd conclusion that pollution and commerce have no direct relation.

In some cases, pollution might have a substantial relation to interstate commerce. In this instance, it does not. What is being polluted is a non-navigable wetland, which cannot be used by any ships or commercial vessels.

Furthermore, as I clarified above, merely having a substantial relation to interstate commerce is insufficient. All sorts of activities--like marriage or crime--have substantial effects on commerce, but they remain under state control. In order to qualify for congressional regulation on the grounds that it has a substantial relation to interstate commerce, an activity must be economic (see U.S. v. Morrison). Pollution is not an economic activity.

[True Federalist (진정한 연방 주의자)]

Pollution doesn't stay put as you seem to be blithely assuming.

[Emsworth]

Pollution doesn't stay put as you seem to be blithely assuming.

So? How is that relevant to the point that it fails the Lopez test?

[True Federalist (진정한 연방 주의자)]

I don't accept that a developer filling in a wetland to build something on it fails the Lopez test. That clearly is commercial activity.  Neither Lopez nor Morrison addresses the issue of when commerce becomes interstate commerce, which would seem to me to be the only possibility for this fail the Lopez test but given the Court's prior wide deference to Congress in Wickard v. Filburn to determine that distinction, as reaffirmed recently by Gonzales v. Raich, I can't see the Court finding that this fails the Lopez test either.

[A18]

Oral argument day.

[A18]

Prediction:

Scalia, Thomas, and Roberts come down on the side of the property owners.

Ginsburg, Souter, Stevens, and Breyer side with the government.

No clue what Kennedy or Alito will do.