Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Regulation
Adler, Jonathan H., Environmental Law
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.
II. 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)
A. Pre-Lopez Development
The Supreme Court first addressed the scope of the Commerce Clause in Gibbons v. Ogden in 1824.(44) At issue was whether a federal statute licensing ships in the "coastal trade" preempted New York's conferral of an exclusive franchise for steamship travel between New York and New Jersey. Chief Justice Marshall, writing for the Court, invalidated the New York statute and held that the Commerce Clause grants Congress "the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."(45) Federal regulation of interstate commerce preempted state efforts within that sphere.
While this statement is often taken as evidence that the Commerce Clause was always read in an expansive manner,(46) Marshall was clear that the Commerce Clause bestowed only a limited power on Congress. There is an "immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government."(47) Among those laws the Gibbons Court cited as remaining in state hands are "[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State."(48)
The Gibbons Court made clear that Congress's power is limited by the explicit text of Article I, section 8. The identification of "commerce" meant that noncommercial activities could not be regulated through that power; the qualification of what types of commerce would be subject to regulation implied that other sorts of commerce would be beyond Congress's reach.(49) "Comprehensive as the word `among' is, it may very properly be restricted to that commerce which concerns more States than one."(50)
The Court had few opportunities to revisit the extent of the Commerce Clause in the following decades. The first case in which the Court invalidated a federal law for exceeding Congress's Commerce Clause power was not until 1870.(51) In the following decades the Court actively policed what it perceived to be the outer bounds of Congress's authority as defined in Gibbons.(52) After the turn of the century, however, the Court began to stretch the edges of the Commerce Clause power, upholding Congress's authority to regulate intrastate rail carriers,(53) stockyards,(54) and labor strikes.(55)
The true turning point in the Court's approach to the Commerce Clause came in NLRB v. Jones & Laughlin Steel Corp., when the Court concluded that Congress could regulate intrastate activities that "have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions."(56) Jones & Laughlin was a large, national, integrated steel producer. Therefore, the Court reasoned, work stoppages and labor conflicts could have a substantial impact on interstate commerce. After Jones & Laughlin, the Court would uphold the regulation of activities that affect commerce, even if the activities were not commercial. While the Court insisted that there were still activities beyond Congress's reach,(57) the case marked the end of the Court's restraint on congressional assertion of power under Article I, section 8.
Indeed, after Jones & Laughlin, there was little, if anything, that the Court would find beyond Congress's reach. In Wickard v. Filburn(58) the Supreme Court upheld the federal prosecution of a farmer growing wheat on his own farm for his own family's consumption in violation of federal agricultural production quotas. Because of interdependent national markets, the Court found that the federal government could regulate the farmer's noncommercial activity--growing wheat for his family--because it affected the amount of wheat he grew for sale in interstate commerce. Adopting the "aggregation principle," the Court deemed that even when a noncommercial activity's impact on commerce is by itself trivial, it can be regulated if the activity "taken together with that of many others similarly situated, is far from trivial."(59) That the farmer's growing of wheat for his family had insignificant impacts on interstate commerce was irrelevant, the Court reasoned, because the aggregate impact of all farmers growing wheat for their own consumption would be substantial. The doctrine announced in Wickard created a basis for congressional authority with "no stopping point."(60) Indeed, it would be hard to devise a more expansive test without wholly abandoning any pretense that Congress's Commerce Clause power is limited.(61)
Despite the admonitions in Jones & Laughlin and subsequent cases about the limits of the Commerce Clause power, the Court upheld one congressional enactment after another.(62) By the early 19908, the statement that Congress could conceivably exceed its delegated power seemed to be an empty mantra.(63) Indeed, the Court's consistent deference to Congress's assertion of authority from the New Deal until Lopez suggests that truth-in-labeling would require calling the Commerce Clause the "Hey, you-can-do-whatever-you-feel-like Clause."(64)
B. United States v. Lopez
In 1995 the Supreme Court found an explicit limitation on Congress's Commerce Clause power for the first time in over fifty years. At issue in United States v. Lopez was the Gun-Free School Zones Act of 1990 (GFSZA),(65) a federal statute prohibiting the knowing possession of a gun within one thousand feet of a school. Alfonso Lopez, Jr., a high school student in San Antonio, Texas, was arrested in 1992 for carrying a concealed handgun to school and subsequently prosecuted under the GFSZA even though Texas law prohibited gun possession on school grounds.(66) His conviction was overturned by the Fifth Circuit Court of Appeals,(67) and the Supreme Court affirmed. The Court's decision invalidating the GFSZA was subsequently greeted, and condemned, as a significant shift in Commerce Clause jurisprudence.(68)
Writing for the majority, Chief Justice Rehnquist stressed that the decision was based on the founding principle that "the Constitution creates a Federal government of enumerated powers."(69) Congress has no plenary power to regulate the affairs of the nation as its members see fit. No matter how compelling the perceived need for federal action, Congress only has those powers explicitly delegated to it in Article I of the Constitution.(70)
While Lopez marked a clear departure from earlier decisions, in tone and result, Chief Justice Rehnquist stressed that even cases upholding congressional exercises of Commerce Clause power acknowledged that power's limits.(71) Reviewing the Court's Commerce Clause decisions, he noted that "the pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained."(72) The GFSZA, however, "neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce," and therefore exceeds Congress's power "[t]o regulate Commerce.(73)
The Court based its decision on a narrow reading of the traditional three-part test to determine whether regulating a given activity falls within Congress's power to regulate commerce. Under this test, Congress may regulate the "channels of interstate commerce" and their use, the instrumentalities of interstate commerce, and those activities that "substantially affect" interstate commerce.(74) Possession of a gun in a school zone, even if that gun had traveled in interstate commerce, fails to meet this test.
For most cases in which federal jurisdiction under the Commerce Clause is challenged, the "substantial effects" part of the test will be the most significant. Even a radical Supreme Court would be unlikely to invalidate regulations covering the channels or instrumentalities of commerce. The explicit question to be addressed in most future Commerce Clause cases is whether given activities--from the burning of homes(75) and the filling of wetlands to hazardous waste cleanup(76) and violence against women(77)--have a substantial effect on interstate commerce. But assessing what does or does not substantially affect commercial activity is not the only issue. The majority and concurring opinions both stress a second concern that appears to be of equal import in the Court's recent jurisprudence: preventing congressional interference with "traditional state functions" so as to preserve state autonomy within the federal system. Thus, a second question to be addressed in future Commerce Clause cases is the extent to which congressional enactments, and the subsequent edicts of regulatory agencies, infringe upon the prerogatives of state governments to handle their own affairs.
1. "Substantially Affects"
The pivotal prong in the Court's announced test in Lopez--whether an activity "substantially affects" interstate commerce--is, to say the least, incredibly elastic. There are few things that do not affect interstate commerce in some fashion, particularly if one aggregates the impacts of individual activities with otherwise insignificant effects, as the Court did in Wickard v. Filburn.(78) If the only question is whether a particular class of activities impacts interstate economic activity there is hardly anything that falls outside of Congress's authority; "Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce."(79) As the dissent noted and as the government stressed to the Court, the potential aggregate economic impacts of allowing handguns in schools are quite large,(80) Guns in schools can "undermine the quality of education in our Nation's classrooms," which in turn reduces the future productive capacity of students, which substantially affects interstate commerce.(81)
Yet this approach proves too much and destroys the notion of enumerated powers. After all, similar exercises could extend Congress's Commerce Clause authority to just about anything.(82) As the majority noted, "if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."(83) And that is the whole point of the Lopez test--identifying a line of power that Congress may not cross,(84) The only problem is that the "substantially affects" test, on its face, does not demarcate a clear line.
Some have argued that the answer to this dilemma may be resolved by the application of "fuzzy logic."(85) As noted by Deborah Jones Merritt, some things clearly affect interstate commerce more than others, but the exact position of this line is unclear, even for the staunchest originalist.(86) Just as it is a relatively facile intellectual game to trace the aggregate economic impacts of any activity the federal government could seek to regulate, the concept of "commerce," or that which affects it, is infinitely expandable. The distinctions are not absolute, but matters of degree. "Interstate commerce, like birds and baldness, is not a crisp set."(87)
Judicial rules, however, require making fine distinctions that, at least in appearance, clearly demarcate where one realm ends and another begins. The fuzzy nature of the line between what is or is not subject to the Commerce Clause power does not prevent drawing the line, but it does force the Court to provide a broader explanation than simply declaring that interstate commerce can be regulated under Article I, section 8 and everything else cannot. Hence, the Court provides numerous fuzzy rules as indications of how to draw the line between what is legitimately regulated as affecting commerce, and what is not.(88)
In Lopez, the Court did not measure whether gun possession in school zones has a substantial effect on interstate commerce by attempting to tally the aggregate economic impact of guns in schools around the country. As gun possession in school zones is not an economic activity, the Court refused to engage in Wickard-style aggregation.(89) Nor did the Court seek to outline "a constitutional gate that would open once a prescribed number of interstate dollars had passed."(90) "Showing that something affects the national economy does not suffice to show that it has a substantial effect on interstate commerce."(91) Rather, the Court was more concerned with qualitative issues: the nature of the regulation and regulated activities in question.
In invalidating the GFSZA, the Court stressed the noneconomic nature of gun possession in a school zone.(92) Chief Justice Rehnquist's opinion notes that in prior cases the Court "upheld a wide variety of congressional Acts regulating intrastate economic activity," but the GFSZA "by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms."(93) Justice Kennedy made the same point in his concurrence that "neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus."(94) The "substantial affects" test is therefore best understood not as a quantitative measure of a given activity's economic impact, but a more qualitative, and less precise, inquiry into the nature of the regulation and regulated activity at issue. This not only entails questioning whether the activity is commercial, but also the regulation's impact on the federalist system. If the challenged rule is "not an essential part of a larger regulation of economic activity," then it is less likely to pass constitutional muster under Lopez.(95)
2. Traditional State Functions
Although the test announced in the majority opinion focused on the relationship between the regulated item or activity and interstate commerce, the Court did not exactly apply it to the facts at issue.(96) Lurking in the background of the majority and concurring opinions is a concern for the potential impact of an unrestrained Commerce Clause on federal-state relations. Lopez can be read as a decision that seeks to defend state sovereignty.(97) Banning guns near schools was too much of an intrusion upon areas traditionally handled by state governments. Therefore, implicit in Lopez is a second, potentially more important question than the commercial nature of a given activity: Does the federal regulation in question intrude upon "traditional state functions"? If so, the regulation is more likely to be struck down. This may be the most important fuzzy rule for future Commerce Clause cases.
From this standpoint, Lopez is best viewed as part of the Supreme Court's recent federalist revival.(98) At a fundamental level, federalism and Commerce Clause cases address the same issue. As Justice O'Connor noted in New York v. United States,(99) constitutional inquiries as to whether sovereign powers have been granted to the federal government under the Constitution, or are retained by the states, are "mirror images" of the same question,(100) "If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress."(101)
Thus, insofar as the Court finds limitations on federal authority to regulate matters of state or local concern, it reinforces the dual sovereignty of the federal system.(102) This point was explicit in Justice Kennedy's concurrence: "Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory."(103) The majority also recalled that even in NLRB v. Jones & Laughlin Steel Corp.,(104) decided at the outset of truly expansive Commerce Clause interpretation, the Commerce Clause was to be interpreted "in the light of our dual system of government." To hold otherwise "would effectually obliterate the distinction between what is national and what is local and create a completely centralized government."(105) A plenary Commerce Clause power would completely eviscerate the governmental design that the founders sought to create. Thus, for federalism to be a meaningful concept and for individual liberty to be protected, the Court recognized that Congress's Commerce Clause power could not operate without constraint.
In the context of the GFSZA, the Court found it significant that "[u]nder our federal system, the `states possess primary authority for defining and enforcing the criminal law.'"(106) This was an even larger concern for Justices Kennedy and O'Connor. As Justice Kennedy noted, "it is well established that education is a traditional concern of the states."(107) Equally important, the vast majority of states, over forty, already outlawed gun possession in or near schools.(108) Insofar as gun possession in school zones is a problem, states fulfilled their role within the federal system by developing means of addressing the problem. Federal intervention, through the GFSZA, can only impede this process. "The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term."(109) Undue interference in matters traditionally left to the states "contradicts the federal balance the Framers designed and that this Court is obliged to enforce."(110)
What exactly constitutes a traditional state function is unclear, though the Court's decisions provide some guidance on the matter. In Lopez, the majority and concurrence identified crime and education as areas where states have typically dominated.(111) Even the government allowed that the arguments made in defense of the GFSZA could support federal regulation of marriage, divorce, child custody, and other issues traditionally left to the states.(112) Not only are family law and education areas in which states have played the dominant policy role, they also fail to generate substantial interstate pressures on other states to modify their policies.(113) Property law, including title, transfer, and inheritance, has also been recognized as "an area traditionally left to the States."(114) More important for the purposes of this Article, in 1982 the Supreme Court declared regulation of land use a "quintessential state activity."(115)
Typically, as Justice Kennedy noted, granting states the leeway to set their own policies will spur a competitive dynamic through which states experiment and compete to provide the mix of services and amenities desired by present and prospective residents. There is usually substantial pressure to discard burdensome regulations that produce minimal benefits.(116) In the context of crime prevention, however, federalism "cuts the opposite way" as states benefit from increasing, not decreasing, the stringency of criminal laws.(117) Whereas tightening economic regulations theoretically risks driving industry to other states,(118) tightening criminal codes may encourage more law-abiding families to migrate to the state and encourage criminals (and perhaps some civil libertarians) to migrate to states with lower standards.(119) In other areas, however, there is a concern that the Court not invalidate federal intervention in an area where stateled efforts are impracticable.(120)
Thus, it appears that the Court wishes to protect state prerogatives in those areas in which they have traditionally held sway as long as doing so does not unleash competitive pressures that could frustrate the protection of important national interests. The GFSZA was struck down because failing to make gun possession in social studies class a federal crime does not threaten an epidemic of schoolyard violence. Invalidating other federal statutes, however, may create powerful obstacles to protecting certain interests, and in those cases the Court may be less eager to curtail the Commerce Clause's reach.
C. Application of Lopez by Federal Courts
Since 1995, only one federal appeals court invalidated a federal statute based upon Lopez. Appellate courts have upheld federal laws prohibiting, among other things, carjacking,(121) arson,(122) and blocking access to abortion clinics.(123) They also upheld federal programs governing, among other things, the destruction of endangered species habitat(124) and hazardous waste cleanup.(125) To date, Subtitle C of the Violence Against Women Act is the only federal law felled by an appellate court under Lopez.(126) Although most "courts have resisted urgings to extend Lopez beyond [sections] 922(q),"(127) it would be wrong to presume that Lopez is a dead letter. Few courts have actually engaged in the sort of analysis that Lopez explicitly requires.(128)
While courts have been reticent to extend the logic of Lopez into new areas, a handful of appellate decisions, including Wilson, have relied upon Lopez to limit the jurisdiction of federal authority under otherwise constitutional statutes. In United States v. Denalli(129) and United States v. Pappadopoulos,(130) the Eleventh and Ninth Circuits, respectively, overturned convictions under the federal arson statute(131) because the properties burned in each case were private homes. As the Ninth Circuit reasoned, "an essential element of the crime of arson under section 844(i) is that the property was `used in' or `used in any activity affecting' interstate or foreign commerce."(132) Even though the home in question "received natural gas from out-of-state sources," this connection was insufficient to create the required nexus with interstate commerce.(133) Similarly, in Denalli, the mere presence of a home office was insufficient to grant federal jurisdiction over the home.(134) Yet, just as Wilson left the Clean Water Act fully intact, the statute was not invalidated in either of these cases. Federal jurisdiction under the statute, however, was limited by the reach of the Commerce Clause.
As more cases work their way through the federal court system, the primary impact of Lopez may be a narrower interpretation of federal jurisdiction under existing statutes, rather than "the wholesale invalidation of portions of the U.S. Code."(135) This is particularly true in the case of environmental law where it is typical for Congress to enact sweeping statutes with the potential to encompass all manner of activities, from those that are intimately intertwined in interstate commerce, such as the transportation of hazardous materials across state lines, to those that are quite parochial in nature, such as the regulation of an isolated wetland in the center of a large western state. The application of Lopez in this context does not necessarily call for invalidating these laws as much as it might call for reining in the interpretations that various federal agencies have given them.(136) This is precisely the effect that the Lopez decision should have on section 404 of the Clean Water Act.
III. FEDERAL WETLANDS REGULATION
Federal regulation of wetlands did not begin until the mid-1970s. Prior to that time, most wetland protection was provided by private parties or state and local regulators.(137) The first state wetland protection statutes were passed in the 1960s to protect coastal wetlands.(138) Long before then, however, private organizations, such as the National Audubon …
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Publication information: Article title: Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Regulation. Contributors: Adler, Jonathan H. - Author. Journal title: Environmental Law. Volume: 29. Issue: 1 Publication date: Spring 1999. Page number: 1. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 1999 Gale Group.
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