Martha Jordan
marthaj at swansociety.org
www.swansociety.org
Date: Sunday, July 16, 2000 11:05 PM
Subject: important for us wetland types


The executive report on national environmental and
energy policy

July 13, 2000
Volume II, Issue 74
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3. WETLANDS
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>>
ENVIROS HOLDING THEIR BREATH ON SUPREME COURT
WETLANDS CASE

Environmental groups are holding their breath this summer, worried
that a Supreme Court decision on a case it will hear this fall could leave
wetlands and wildlife without legal protections they have enjoyed for
decades. In the meantime, lawyers for parties interested in the case are
spending their summer writing amicus curiae briefs in hopes of influencing
the high court.

The court agreed in late May to hear the case, Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers (becoming known as "the
SWANCC case"), at its next session, which begins in October. The Seventh
U.S. Circuit Court of Appeals decided last October in favor of the corps and
against the Illinois waste agency. The decision upheld a lower court's
ruling that the corps has authority to
regulate development on land where water is used by migratory birds.

According to Bob Irvin, of the World Wildlife Federation, the nexus of
migratory birds and the Constitution's Commerce Clause is a long-
established one. Even the most-conservative legal district in the nation,
the fourth, in the Southeast, has upheld it, he noted. Thus, the Supreme
Court's agreement to take the SWANCC case is unsettling, especially since it
apparently is doing so just to clarify Commerce
Clause jurisprudence.

Irvin said the case is "enormously significant." Added Julie Sibbing,
of the National Wildlife Federation: "This is huge."

Adding to the trepidation is a recent trend at the court to interpret
the Commerce Clause more strictly, which will not help environmentalists.
Irvin and Paul Kamenar, senior executive counsel at the Washington Legal
Foundation, which will file a brief
on behalf of the waste agency, both pointed to United States v. Lopez as a
precedent. (Also, the Violence Against Women Act was invalidated more
recently, the Supreme Court seeing no Commerce Clause grounds for it.)

Virtually laughed out of the court, according to Kamenar, federal
lawyers in Lopez argued that they have the authority to ban handguns near
schools based on the Commerce Clause. They claimed that the presence of guns
could upset students, which would affect their performance and grades, which
would limit the jobs they are qualified for, which would affect the national
economy. That "leg bone connected to the
thigh bone, connected to the back bone, connected to the arm bone" logic is
also at play -- wrongly -- in the SWANCC case, Kamenar said.

In 1986, the waste agency, comprised of 23 municipalities, sought to
build a 533-acre landfill at a former strip mine. But the corps asserted
permitting authority over the matter on the grounds that migratory birds had
made the site -- now marked by some 200 permanent and seasonal ponds -- into
their habitat. That qualifies the site as
"waters of the United States" under the Clean Water Act. And that CWA
interpretation is sound because of the Commerce Clause, the corps says --
since millions of people travel across state lines to shoot, photograph and
otherwise observe the birds, economic interests hinge on preserving the
habitat.

Among other things the Seventh Circuit Court found in its October
decision, 3.1 million Americans spent $1.3 billion in 1996 to hunt migratory
birds. Another 17.7 million traveled beyond their home state to observe
birds.

The corps continues to maintain that the SWANCC case is a good test of
its regulatory authority, and one it will win. John Studt, chief of the
corps regulatory branch, recently said that the case "involves good facts
for the corps." The site is actively used by a rookery of great blue herons
(the second largest in Illinois, according to
Irvin), which feed on fish and are dependent on aquatic habitat, Studt
said.

In losing its appeal in October, the municipalities argued that the
corps had made itself into a "sort of super zoning agency," trumping what
should be local land-use decisions with dubious federal authority.
According to Irvin, that authority was first
cemented by the courts in the 1970s in Hughes v. Oklahoma, and has been the
status
quo ever since. For example, U.S. appeals courts for the District of
Columbia, Fourth Circuit and Ninth Circuit have found that protecting
wildlife and its habitat has a "substantial impact" on interstate commerce,
Irvin
noted.

If that is changed by the Supreme Court, however, ripples will go
beyond corps jurisdiction over wetlands, most agree. "Of course it would
implicate all environmental law," Kamenar said. Among other things,
tighter interpretation of the Commerce Clause could undercut the federal
Endangered Species Act, especially since all states have their own such
laws, he suggested.

To sway the Supreme Court toward such an interpretation, WLF, the
Pacific Legal Foundation, American Farm BureauFederation and National
Association of Home Builders will file amicus briefs favoring SWANCC. Those
documents are due in about 10 days. For the government, amicus briefs are
due in mid-August, and reply briefs to those will be due in September. The
court will hear the case sometime after October, but a decision may not come
until next year. -- Tim Breen