Friday, March 07, 2008

New York Times Urges Congress To Do The Unconstitutional Thing

It's been a few days, right? So I suppose it's no surprise to see the New York Times editorial page saying something stupid again. According to their alarmist editorial, half of all the waters in the United States are at risk of pollution because of the Supreme Court's 2006 Rapanos v. U.S. decision. Therefore, the Times is encouraging Congressional passage of the Clean Water Restoration Act, which would apparently extend Clean Water Act jurisdiction to all waters in the United States, no matter how remote or isolated they are.

As long time readers may remember, I discussed the Rapanos decision in detail, along with the limitations of the Commerce Clause on the Clean Water Act in my law journal article, "Constitutional Limits to Federal Environmental Regulation: The Commerce Clause Challenge to the Safe Drinking Water Act" available at 10 Quinnipiac Health L.J. 77-112 (2006). I don't want to get too complicated for non-legal readers, but basically, the Supreme Court decision in Rapanos avoided the Constitutional issues to reach a conclusion on statutory grounds, saying that the Clean Water Act did not intend to cover every drop of water in the country.

Even if a law were to pass explicitly extending the coverage of the Clean Water Act, such a law would be of dubious Constitutionality. The reason being is that Congress is limited in the legislation it can pass to the powers specifically granted in the Constitution- this includes the interstate Commerce Clause, which has been interpreted to permit legislation regulating the channels of commerce, people in commerce and the instrumentalities of commerce, and activities with a substantial effect on commerce. In the past 70 some odd years, the Commerce Clause has been the rationale behind a myriad of federal laws, but although it's meaning has been stretched, it does still hold real limitations. The Federal government has no power to regulate strictly intrastate activities that do not impact on interstate commerce. So while the federal government is fairly free to pass economic legislation, they are not permitted to legislate traditionally local issues- like for instance, local zoning and building codes.

I mention that traditional sort of land use regulation because that's exactly the sort of regulation the Clean Water Act permits the federal government to butt it's nose in to. Now such regulation makes sense, logically and legally, if we're talking about the connected waterways of the United States- lakes and rivers which provide an inter-connected system that extends beyond state boundaries. And yes, even the regulations of wetlands adjacent to such waterways makes sense. As I well know from where I live now, if you build a shopping mall down the road, it effects all the land nearby- the lake near my house, the swamp behind my house, and the drainage issues we have when it rains.

What doesn't make sense is the regulation of waterways and wetlands unconnected with the major waters of the United States. There may be circumstances where you have several brooks flowing into a pond, but the reach of the impact of such a system of waters would probably be limited to the valley which they're all located. In the Rapanos case, the individuals involved wanted to develop land that was adjacent to a seasonal brook and miles from any real substantial body of water. The issues isn't whether there should be any regulations on development at all, the issue is whether in cases like that, regulation should be left to local authorities and not to the federal government.

Not surprisingly, the New York Times has argued for federal regulation, implying that anything less would result in the complete destruction of our environment. As I said, I don't think the proposed legislation withstands Constitutional scrutiny. Permitting such legislation opens the door to the federal regulation of all land use- not just wetland regulation, but any and all use of the environment. It's a rather scary proposition because we know where we live and we know our communities, certainly a lot better than some bureaucrat in Washington or some ignoramus at the New York Times.


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