The Court, Commerce, & Water Pollution

The Supreme Court has decided to review whether pollution of intra-state waterways is within the Congressional power to regulation interstate commerce. In the Wall Street Journal [subscription required]:

"Wading into a long-running environmental dispute, the Supreme Court agreed to decide how deeply within state lines the federal Clean Water Act extends.

In a pair of cases from Michigan, developers contend Congress never intended to regulate 'intrastate' waterways with scant connection to interstate commerce. And even if it did, they say, Washington lacks the constitutional power to reach that far.

The implications are broad. 'We're talking about thousands of property owners nationwide,' covering as much as 100 million acres of intrastate wetlands in the contiguous U.S., said Reed Hopper, an attorney with the conservative Pacific Legal Foundation in Sacramento, Calif., which represents one of the developers." ["High Court to Examine the Scope Of Federal Clean-Water Laws , by Jess Bravin, WSJ, October 12, 2005, page A4]

Perhaps the reference to wetlands is more to the point, than is "intrastate waterways." The article in the Washington Post explains:

"At the center of the debate is the Clean Water Act, which gave the federal government authority to block pollution in 'the waters of the United States.' At the time, this jurisdiction was premised on Congress's power to regulate interstate commerce on the country's 'navigable' waters.

Since then, federal regulators have defined the waters of the United States to include wetlands that are 'adjacent' to larger rivers or lakes, but there is dispute about the precise meaning of 'adjacent.'

The government views wetlands as part of complex ecosystems that must be kept clean to preserve the quality of the larger bodies of water they ultimately feed. Property owners, supported by such organizations as the National Association of Home Builders, say this is a sweeping definition that rubs out state and local land-use authority -- and adds to the cost of housing.

The court tried to avoid the constitutional issue in 2001, when it ruled that the federal government could not use the Clean Water Act to protect small, shallow ponds in Illinois just because they are used by migratory birds.

In that case, the court implied that the Clean Water Act required a 'significant nexus' between a wetland and an 'adjacent' larger body of water. [Charles Lane, "Court to Rule on Federal Regulation of Wetlands, Washington Post, October 12, 2005, page A04]

It seems to me that wetlands within a state should not be considered within interstate commerce, and therefore Congress should not, constitutionally, have the power to regulate such land. I hope Roberts remembers his hapless toad.