US Congress's Constitutional Authority for Clean Water Protection

This is our second guest post from the Environmental Law Institute or "ELI". We'd like to introduce its subject matter from the perspective of a future reshaped dramatically by climate change. The outcome of climate change...expressed as more extended and/or more frequent regional drought, as more frequent, intense storms and commensurate flooding, or even, if we take our imagination several decades forward, as the reshaping of coastal uplands due to heightened ocean levels, will change vast areas of wetlands. Flowing waters, too, will be affected. What once was a continuously flowing stream will be an intermittent weed choked channel, similar to what is pictured. Land that once was dry enough for development will no longer be, and vice versa. These, and other parallel events we can't yet see in evidence, are predetermined outcomes of climate change.

The US Clean Water Act, the body of US law which governs basic protections of wetlands and streams, was created in a time period where the hydrologic regime, on reflection, seems rather static by comparison. What is the legal basis from which Congress approaches the Clean Water Act and this prospective future? Let's see what the Environmental Law Institute has to say.

(WASHINGTON DC) Recent Supreme Court rulings have called into question federal Clean Water Act coverage for certain wetlands and streams. Legislation recently introduced in the House of Representatives would amend the Act to restate and clarify Congress's intent to regulate the waters of the United States to the fullest extent of its legislative power. The Environmental Law Institute (ELI) has issued a new white paper that identifies which constitutional powers Congress can rely on to protect the Nation's waters, and explains in straightforward language what the Supreme Court has said about these powers.

The Supreme Court rulings in question (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001, and Rapanos v. United States, 2006) were limited to interpreting Congressional intent in 1972, when Congress used the terms "navigable waters" and "waters of the United States" to assert federal jurisdiction under the Act. The Court has never decided the underlying constitutional question: what is the scope of Congress's constitutional authority to protect the Nation's waters? ELI's legal analysis is intended to inform this debate.

A key source of Congressional power to regulate streams and wetlands is the Constitution's Commerce Clause. Congress's interstate commerce power is often misunderstood as being limited to including only navigable bodies of water, such as rivers, when in fact a long and unbroken line of Supreme Court cases establishes that Congress can regulate a wide range of activities that "substantially affect" interstate commerce. ELI's white paper lays out the historical context of court rulings in this area, emphasizing the role of the commerce power as the basis for nearly every major environmental and public health law passed by Congress. Despite repeated legal challenges, neither the Supreme Court nor the federal courts of appeals have ever struck down an environmental statute under the Commerce Clause.

The ELI white paper also points to at least three other separate sources of constitutional authority for protecting water resources:

• Treaty power: Congress's power to implement existing international obligations of the United States provides an independent basis for regulating "isolated" wetlands or similar bodies of water as a means of safeguarding migratory birds and their habitat;

• The Property Clause: grants the federal government "the powers both of a proprietor and of a legislature" over federal lands—powers that can extend to conduct occurring on non-federal lands that affects federal lands and their resources; and

• The Spending Clause: allows Congress to expressly condition the grant of federal funds on states' agreement to protect certain categories of waters.

The document also underlines Congress's power to make all laws that are necessary and proper for carrying out the powers listed above.

The full document is available on the ELI website: here.

Image credit:: Illinois Department of Natural Resources, intermittent stream