The Commerce Clause Pendulum: Will Federal Environmental Law Survive in the Post-SWANCC Epoch of "New Federalism"?
Tanabe, Jamie Y., Environmental Law
Our nation is founded upon principles of federalism that require a delicate equilibrium between federal and state powers. (1) Since our nation's birth, however, these powers have been in constant conflict over their jurisdiction on issues ranging from civil rights to gun control. Federalism is a concept embedded in federal legislation and affects the lives of all Americans, uniting the efforts of diverse groups such as the National Gay and Lesbian Task Force and the National Council of Jewish Women. (2) Recently, federalism has played an increasing role in the regulation of the environment and has brought forth the looming question of how much power Congress has under the Constitution to set national environmental standards and take other measures to protect our nation's natural resources.
The federal government's regulation of the environment is a relatively recent phenomenon that developed after a history of failure by the states to effectively protect our nation's resources. (3) Until the 1970s, environmental regulation was mainly a local concern managed by the states and governed by common law. (4) Today, the primary approach to environmental regulation is a "cooperative federalism" model whereby federal agencies are responsible for establishing national environmental standards, and qualified states are given the responsibility of implementation and enforcement. (5) This seemingly healthy balance between state and federal power gave rise to a plethora of environmental regulation in the 1970s and early 1980s, but has raised considerable debate today concerning the principles of federalism. Until recently, Congress and federal agencies expanded environmental regulation, and the United States Supreme Court consistently deferred to agency decisions unless found to be "arbitrary, capricious, or manifestly contrary to the statute." (6) In the past decade, however, the Supreme Court has taken a closer look at Congress's exercise of its Commerce Clause power and has invalidated several federal laws for violating basic principles of federalism. (7) This movement toward federal devolution reached the realm of environmental law in the Supreme Court case Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). (8) The Court's five-to-four decision in SWANCC struck down the "Migratory Bird Rule" as overreaching the authority of the United States Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (CWA). (9) The decision substantially contracted the Corps's jurisdiction to regulate wetlands. (10) This decision may mark the turning point in the federal government's power to regulate environmental affairs by reinvigorating the push for states' rights and traditional concepts of federalism.
The next decade will be challenging for federal environmental law in light of the Supreme Court's recent federalism decisions. (11) The pendulum that once swung so strongly in favor of federal environmental regulation has begun to swing back with the SWANCC decision. With the Supreme Court's revival of federalism and the Bush administration's inclination toward states' rights, invalidation of environmental laws for violating the Commerce Clause is likely to increase. (12) This Comment will discuss the Court's decision in SWANCC and its impact on federal environmental law. Part II begins with a basic background of the environmental federalism debate and the history of federal environmental law. This Part will also outline the Supreme Court's recent Commerce Clause jurisprudence, its decision in SWANCC, and how various groups have responded to the decision. Part III analyzes Congress's Commerce Clause power to regulate noneconomic activity in light of SWANCC, and the Court's recent treatment of the doctrine of administrative deference established in Chevron U.S.A., Inc. v. National Resources Defense Council (Chevron v. NRDC). (13) This section will also discuss the repercussions of SWANCC and the Court's renewed federalism on other environmental laws and Congress's ability to enact environmental legislation in the next decade. …