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.

Clean Water Closer To Restoration

As readers will be aware from my prior posts (both of which can be found here), a bill entitled the "Clean Water Restoration Act" is wending its way through Congress. Well, as discussed in this New York Times editorial, the bill may start wending a little faster. The Obama administration has written to the House and Senate committees considering the bill urging that they approve the legislation. Some of the urgency may derive from efforts to polish the United States' environmental credentials in advance of the December climate change talks in Copenhagen.

Rapanos Redux

Two weeks ago I posted an entry about the Clean Water Restoration Act (“CWRA”). Shortly thereafter, at the request of U.S. Representative James Oberstar, the EPA issued a report containing the anecdotal comments of various regional EPA and U.S. Army Corps of Engineer officials regarding the Supreme Court’s decision in Rapanos. That decision serves as one of the rallying points for supporters of the CWRA, who claim that it has limited the scope of federal jurisdiction under the Clean Water Act and caused confusion among government agencies as to what jurisdiction actually does exist.

The upshot of the report is that there is unverified anecdotal evidence that uncertainty associated with the Rapanos decision has increased costs to the EPA (and to some extent the Army Corps of Engineers) associated with evaluating and bringing enforcement actions. The report specifically states that nationwide the Rapanos decision has affected approximately 489 enforcement actions, “such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.” (See Report, p. 1) This report supports the notion that some resolution of the confusion caused by Rapanos, such as the CWRA, is needed.

Whether Rapanos improperly limited jurisdiction under the Clean Water Act or reigned in out of control jurisdiction is a question of perspective. That the Rapanos decision has caused confusion is not. This is evident in the split of the various U.S. Courts of Appeal over which of the three tests propounded by the Supreme Court should be controlling. (See e.g. United States v. Cundiff, 555 F.3d 200, 207 (6th Cir. 2009)(“Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which--if any--of the three main opinions lower courts should look to for guidance.”)

Indeed, the Sixth Circuit in Cundiff discusses the dilemma and current divisions among Circuit Courts quite succinctly:

In its short life, Rapanos has indeed satisfied any "bafflement" requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy's test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit has held that the Act's coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens' advice and held that the Act confers jurisdiction whenever either Justice Kennedy's or the plurality's test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).

Cundiff, at 208. The Sixth Circuit was able to dodge the dilemma in Cundiff by ruling that Clean Water Act jurisdiction existed under all three tests in that particular case. Other Circuits have similarly dodged the bullet thus far, while presumably hoping that either the Supreme Court or Congress will act to resolve the confusion.

Rapanos is not the first splintered decision issued by the Supreme Court, and the Court has provided some guidance to lower courts for exactly this eventuality, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’" Marks v. United States, 430 U.S. 188, 193 (U.S. 1977). This test essentially invites the lower courts to guess how the Supreme Court justices would vote if the case were before them. Unfortunately, the plurality and Kennedy tests enunciated in Rapanos each flatly reject the other. This is complicated by the dissenting Justices who command four votes and held that jurisdiction exists under either test. Thus:

Although "in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality)," in other cases Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection."

Cundiff, at 210 (citations omitted). Given the confusion among the courts, it is not difficult to see why the Army Corps of Engineers and EPA are having trouble with Rapanos.

The Clean Water Restoration Act

There is a fight brewing – big surprise – over the Clean Water Restoration Act of 2009 (“CWRA”)(S.787). The stated purpose of the CWRA is to “restore” the authority of the EPA under the Clean Water Act and roll back the clock to the state of the law prior to the U.S. Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and Rapanos v. United States, 547 U.S. 715 (2006).

According to U.S. Representative James Oberstar (D-MN) and Senator Russ Feingold (D-WI), as well as environmentalists who support the bill, the CWRA is needed to restore the original authority of the EPA under the Clean Water Act. Others disagree and allege that the CWRA vastly expands the scope of the EPA’s authority to waters never contemplated under the Clean Water Act.

The crux of the dispute is that the Clean Water Act of 1972 (as amended) does not clearly define what waters it applies to. The Act refers to “navigable waters” (33 U.S.C. §§1311(a) and 1342(a)), but then defines that term as “the waters of the United States, including the territorial seas.” (§1362(7)) Prior to the Supreme Court’s decisions in SWANCC and Rapanos, the Act was believed by some to apply broadly to non-navigable (in the traditional sense of the word) bodies of water, including intrastate wetlands. SWANCC and Rapanos changed all that. Under those decisions, the extent of the Clean Water Act was read to include only “relatively permanent, standing or continuously flowing bodies of water…” Rapanos at 739. Further, the Court read the Act to cover only those wetlands with a continuous surface connection to an otherwise covered “water”. Id. at 742. This had the effect of excluding numerous intrastate “waters” and wetlands that had previously been deemed to fall within the scope of the Act.

So – here comes the CWRA. This legislation will either “restore” or “dramatically expand” federal jurisdiction under the Act – depending on whether you support or oppose it. The CWRA would extend the Act to include, “all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing...” (S. 787, §4(3)). In comparing this definition with the one currently found in the Act, I think I have to agree that this expands - not restores - federal jurisdiction under the Act. Environmentalists may not be happy with the Supreme Court’s reading of the Act in Rapanos, but it is reasonable. Those who dislike the decision should vent their ire not at the Supreme Court, but at the legislators who failed to adequately describe what the Act was supposed to cover. The more important question however is not whether the CWRA is restoration or expansion, but whether or not it is a good idea of itself.

As a general proposition, I am often leery of attempts to expand federal regulatory authority for the simple reason that there are often much more efficient means of addressing our problems on a local level. Despite this, there are numerous areas where federal regulation is not only beneficial, but indispensable. One need only look at where the deregulation of the financial industry has gotten us to see a dramatic example of the need for regulation. As to the CWRA, I am mindful of the expansion of federal jurisdiction it entails, but that is outweighed in my mind by the simple fact that water – like the financial industry – is all interconnected. It is a fundamentally dynamic resource that is constantly cycling through our environment – much like air. As such, I have difficulty truly imagining water that is solely “intrastate” or otherwise completely isolated from all other water sources or supplies. To me, that fact weighs heavily in favor of comprehensive regulatory controls that provide consistent treatment of water nationwide.