Supreme Court Avoids Commerce Clause Question Through Narrow Construction of Clean Water Act

By a 5-4 vote, the conservative majority on the U.S. Supreme Court narrowly construed the Section 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a). Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 2001 WL 15333 (Jan. 10, 2001).

As a result, the Court found it unnecessary to decide whether a broader interpretation exceeded Congressional power under the Commerce Clause.  For more than 50 years, the Court approved Congressional regulatory measures based on  the Commerce Clause. But in two recent cases, the Court has found Congress exceeded its Commerce Clause powers. United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).
 
The case involved a proposal to use an abandoned quarry which seasonably fills with water for a non-toxic waste site.  The Army Corps of Engineers rejected a permit request under the Clean Water Act, applying its “Migratory Bird Rule,” 51 Fed. Reg. 41217.  It found that121 species of birds were observed at the site, some of which relied upon it for substantial life support.
 
The majority of the Court, citing “substantial constitutional questions” raised by application of the regulations in the circumstances of the case, found that the CWA was not applicable, holding that the quarry did not fall within the term “navigable waters” in Section 404(a).

 The dissenters concluded that the application of Section 404(a) to the quarry met with Congressional intent.  They then applied the traditional rule that Commerce Clause power extends to activities which “substantially affect interstate commerce.”   In examining that question, the dissent said that “it is not necessary that each individual instance of the activity substantially affect commerce: it is enough that, taken in the aggregate, the class of activities in question has such an effect. Perez v. United States. 402 U.S. 146 (1971).”   It found that use as a waste deposit made the site into an economic activity.   In addition, millions of persons participate in bird watching and hunting, generating considerable economic activity.  Finally, the dissent stated that the federal regulation of the site did not constitute federal authority over exclusively local interests.  While the use of the site may be a local matter, the environmental impact is national in nature.
 
In light of the substantial economic activity involved in the protection of migratory birds, the majority reference to substantial constitutional questions suggests the majority may be prepared to narrow the scope of Congressional power under the Commerce Clause.