Thursday, June 4, 2009

Clean Water Restoration Act Unconstitutional?

The Pacific Legal Foundation recently issued a press release putting forth the argument by attorney Reed Hopper that the Clean Water Restoration Act (CWRA) is unconstitutional. (Thanks to Aquafornia for picking this up) Mr. Hopper is the Principle Attorney for the Pacific Legal Foundation, and represented the petitioner (the winning side) in the Rapanos case.

Is Mr. Hopper correct? Pacific Legal’s press release doesn’t contain much specific information on the reasons for his position – so I asked him. In response to an e-mail inquiring into the basis for his position, Mr. Hopper kindly provided me with a copy of his July 17, 2007 testimony before the Subcommittee of Water Resources and Environment. In that testimony he addresses a previous (though substantively identical) version of the CWRA, and discusses the constitutional problems he sees with it.

Mr. Hopper raises two compelling questions in his testimony: 1) whether the inclusion of non-navigable waters within the CWRA exceeds Congress’ authority under the Commerce Clause; and 2) whether the definition of ‘waters of the United States” which extends “to the fullest extent that these waters…are subject to the legislative power of Congress under the Constitution.” is an effective abdication by Congress of its legislative responsibilities. (S. 787, §4(3)).

As Mr. Hopper points out, the Supreme Court has held,

[W]e have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

U.S. v. Lopez, 514 U.S. 549, 558-559 (1995)(citations omitted). Under which of these three categories, if any, do non-navigable intrastate waters (and activities that effect them) fit? Mr. Hopper contends that they do not fall within either of the first two categories and thus must fall within the third – that they “substantially affect” interstate commerce – for the CWRA to be constitutional. Mr. Hopper makes a compelling case that they do not, as they facially have nothing to do with interstate economic activities.

As to the argument that Congress is essentially abdicating its legislative responsibilities to the courts, I am not sure that I agree. I do however agree that the language is an explicit invitation for litigation over the “fullest extent” of Congress’ legislative power. But, given the inevitability that the constitutionality of the CWRA will be litigated whether or not the language is there, this is probably an argument of little moment.

If the CWRA is passed into law by Congress I do not doubt that Mr. Hopper, or some other attorney, will have an opportunity to argue these questions before the Supreme Court. But, Mr. Hopper’s position, and the Supreme Court’s decision in Rapanos, leaves me with a question. Is the analysis factually out of date?

The discussion over the constitutionality of the CWRA focuses on water as a means of conveyance, like a road or rail line. This is understandable in the context of the Clean Water Act’s reference to “navigable” waters. But ever increasingly water is considered – first and foremost – a resource. Further, it is a resource that is regularly shipped across state lines by a multi-billion dollar bottled water industry. It is also a resource that the States themselves are fighting over, sometimes to the point of litigation. Water has become a commodity. And it is a commodity that is critical to innumerable industries (see this article for examples).

It is not hard for me to imagine that activities that affect apparently “intrastate” bodies of water or wetlands would have a deleterious effect on the availability of water within a State, and thus affect the pattern of commerce relating to – or dependant on – water. Any individual instance may have a negligible impact overall, but that is irrelevant. In Maryland v. Wirtz, 392 U.S. 183 (1968) the Supreme Court noted, “[t]he Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id. at 197, n. 27. If water is viewed as a pervasive commodity, then an argument can be made that a regulatory statute governing its treatment bears a “substantial relation” to commerce.


  1. This blows my mind. Just rereading this article many many times and im still in complete confusion. It really suprises me that such great lawful minds devote their time to the fineprint when the real issue is getting clean water to people in need.

  2. It may be trite, but there is tremendous truth to the saying "the devil is in the detail." And I can assure you by and large most lawyers (particularly the great minds) probably spend most of their time obsessing over the fine print.

    In the context of the CWRA it may seem silly to be arguing over what it means for water to be "navigable" or not, when the real issue is keeping our water clean. But that particular fine print, and how it is interpreted, has a profound effect on the power of the federal government over the waters of the United States. And thus that fine print has an enormous impact on the lives of the people who are affected by those waters.

    The things lawyers obsess about often seem unimportant - and perhaps sometimes they are - but far more often we obsess over them because they have enormous implications to how real people live their lives.

    Thanks for the comment! (And your comments to my other posts!)

  3. Good to hear of this discussion and I think there has to be some ammendments before it can be completely flawless.

  4. Good thought discussed here.It is definite we have to think more seriously on these lines.

  5. From the Great Lakes to Puget Sound, from the Mississippi River to the Everglades, and from Chesapeake Bay to the Colorado – we can only protect the great waters of America if we safeguard the countless streams that feed them and the millions of acres of wetlands that help keep them clean. Perhaps that is why the Senate EPW committee rejected the spurious arguments of powerful polluters and instead voted to restore protections vital to America’s great waters. As its name indicates, the Clean Water Restoration Act does no more than restore the original scope of the Clean Water Act that our nation adopted some 37 years ago – to protect all the waters of the United States.

  6. Thanks for the comment. As I think is obvious from my posts I support the CWRA, and have in fact been watching the recent press about it with some interest.

    But I have to call it like I see it, and no matter what the bill is called, it does not "restore" the CWA. The CWRA contains language that is significantly broader than the CWA and will extend federal jurisdiction over waters that were never contemplated under even the broadest interpretations of the CWA.