Q: Tell me a little bit about the Environmental Law Institute, so that people have some background about your organization.
A: Sure. ELI is an independent, nonpartisan education and policy research organization. We were founded in 1969, sort of at the eve of the modern environmental movement, and our main task at the outset was to publish all of these new laws and regulations in cases. We still do that 36 years later. We also do other things. We do research. We publish books. And a lot of our work has involved the development and implementation of both federal and state environmental law. We have a lot of expertise, particularly in implementation, how the laws are actually carried out, that’s part of what we’re known for.
Q: In this documentary we’re looking at several provisions of the Constitution … the Commerce Clause is one particular provision we’re examining. Can you tell us a little bit about what the Commerce Clause is and what it provides for?
A: Sure. The Commerce Clause is in Section 8 of Article 1 of the Constitution, which lists all the powers that the Framers gave to the U.S. Congress. And it includes things like providing for defense, establishing post offices and roads. And the commerce section provides that Congress shall have the power to regulate commerce with foreign nations, with Indian tribes, and the phrase that is most important for environmental regulation and economic regulation, “to regulate commerce among the several states” - those are the words. And the classic interpretation of that clause was offered by Chief Justice Marshall in 1824, in a case involving the regulation of steam boats between New York and New Jersey. And if you’re ever going to read a case about the Commerce Clause, that’s the one you should read, because it’s the oldest and the best, the first and the best. And he basically says that this is a broad plenary power for the Congress. It’s limited in that you can regulate commerce only on matters that concern more states than one. And then he concludes that the major restraint on the power is the wisdom and discretion of Congress and of their… the people who elect them. That’s the origin of it.
Q: There has been a debate over time about the breadth and scope of the Commerce Clause. Can you talk about how the Court’s thinking has changed? It’s gone through several different stages or phases in thinking about this issue.
A: Yes.
Q: Can you give us just a summary of that?
A: Sure. The commerce power as defined by Chief Justice Marshall endured for quite a while, until really the end of the nineteenth century, when the country was undergoing explosive industrial development and economic growth. And there was very much a laissez-faire economic theory abroad, which had its impact on the Supreme Court. And what the Supreme Court did during that period, really from about the turn of the century until 1937, was strike down progressive legislation to deal with the bad side effects of industrialization; like labor problems and health and safety issues and monopolies and price-fixing. Whenever the states or the federal government tried to deal with those, the Court would hold that these were beyond their powers. They held that the states could not regulate things like wages and hours because that interfered with freedom of contract. And they held in some of the cases, striking down New Deal legislation initially, that regulating business or labor hours or agricultural prices, the way some of the New Deal legislation did, exceeded the power of Congress under the Commerce Clause.
I regard that as the medieval period of Commerce Clause jurisdiction. And it ended in 1937, when the Supreme Court changed its mind about some of the New Deal legislation and upheld things like controlling the supply of agricultural products to maintain prices for farmers, setting wage and hour standards, and authorizing the organization of unions. And that broad definition of the Commerce Clause has pretty much prevailed up until now, although there have been some exceptions in recent cases that are what has caused some concern about the jurisprudence of the current Supreme Court. And I’d be glad to go into those if you’d like, at the appropriate time.
Q: Yes, I think we should follow-up on that.
A: Chief Justice Rehnquist and other members of the Court were concerned that Congress was overreaching and regulating in areas that were more properly the preserve of state government. And so they issued several opinions which were closely divided in terms of the votes, striking down national legislation. In one case, it was legislation to make it a federal offense to have a gun within a thousand feet of a school. And their rationale was the states already regulate this; what is the federal government doing regulating something that local? And in the second case, they struck down a law that gave certain civil remedies to women who were victims of domestic violence. And again, the rationale was this should be regulated by the state criminal law, and not by the federal government. More troubling than the holdings was a lot of expansive rhetoric about the fact that the states were sovereign and that their dignity was being infringed by these laws, and that Congress needed to pull back from some of the reform legislation that they were enacting. And these cases have given rise to concern that certain laws, like the environmental laws which are based on the Commerce Clause, might be similarly questioned as exceeding the power of Congress and infringing upon the sovereignty or the dignity of state government.
Q: Before we get deeper into that sort of “federalism revolution” of the Rehnquist Court, and some of the decisions that have come out of that - can we back up and talk about how the framework for the current environmental laws that we have were enabled because of the Commerce Clause decisions that came about over the course of the twentieth century?
A: Sure. Well most of the modern environmental laws that are regulating that area of our life today were enacted in the seventies and early eighties. And there’s probably a dozen of them: the Clean Water Act, the Clean Air Act, pesticide legislation, hazardous waste legislation, drinking water, surface mining – a host of requirements. Because, of course, as everyone knows, the first Earth Day was in 1970 and there was a tremendous public outcry that whatever we were doing to control pollution and protect the environment, it wasn’t enough and it wasn’t working. And so Congress passes a whole series, as I mentioned, of very sweeping laws to change that. And they were based in large part on its authority to regulate the national economy under the Commerce Clause of the Constitution. And that is why some are concerned that some of these new laws may impair that framework, the framework itself. Let me elaborate just a little in the environmental area. To generalize a bit, most of the statutes establish minimal federal standards that every polluter or every state has to live up to. They also provide for federal/state cooperation - really a partnership in administering those laws. And having been a state commissioner and a federal administrator, I’ve seen both sides of that partnership. The third thing that they provide that is special and important … they provide for minimum standards that all the states have to pay attention to in implementing them. They provide for very intense state/federal partnership in carrying them out. For instance, most of the federal laws like the Clean Water Act and the Clean Air Act assume that the state is going to bear the major responsibility for administering the programs and setting priorities and enforcement. There is federal oversight, but there is a lot of state involvement in deciding how to execute the programs. The third thing is that the laws allow the states to have more stringent standards than the federal government if they choose. For instance, in my state of Connecticut, we had tighter rules on recyclers than the federal government did, because we found that a lot of the recyclers were fly-by-night operations who created big problems for us; and that’s just an example. The greenhouse gas emission controls that are being adopted by the Northeastern states are another example of the states going beyond the minimum standards. And then the fourth thing that we in the environmental business consider important, is that the laws provide extensive authority for citizens to participate in the development of rules and regulations, and to challenge the government and to be involved in permitting and enforcement proceedings if they think the government is not doing a good job. And all of those things we consider to be the four pillars that have made the environmental programs as effective as they are, and we feel that they have been highly effective.
Q: I’d like to come at this from a little different angle. That concept of ‘the four pillars’ is very easy to understand.
A: Okay, okay.
Q: I’m wondering if we can take just a second, condensed run at what ‘the four pillars’ are?
A: Okay. We consider that there are four pillars of the law that have made environmental law so effective in this country. The first is that we have federal statutes that establish tough minimum standards that everyone has to meet and that the states have to follow. The second thing is that, to an unusual degree, the federal and state environmental programs are administered as a package, as a team; and there is a tremendous amount of collaboration and cooperation, more than in most other areas of regulation. The third advantage, we think, is that the environmental laws generally allow the states to go beyond federal requirements and experiment - things like the greenhouse gas controls that the Northeastern states are doing - and try out new things and innovate. And the fourth thing is that the environmental laws allow citizens not only to participate in rule-making, but to actually sue polluters if the state or federal governments do not proceed. And they also have the ability to sue if the government isn’t doing its job. And all of those things have created an unusually potent and effective means of regulating public health and the environment.
Q: At the federal level, can you tell us about a couple of the most important environment laws that are on the books currently that could be impacted by changes in Commerce Clause jurisprudence?
A: Yeah. Well, there are so many and there are so many that are important. The ones that are in some ways broadest in terms of their reach are the Clean Water Act and the Endangered Species Act. The Clean Water Act provides for regulation of the waters of the United States, which is a very broad term. There are cases now challenging just how broad that term ought to be, and we can get into that now or later, as you choose.
(Pause for technical adjustment.)
A: Following the decisions dealing with the guns near schools and the case involving the violence against women, the Supreme Court made a decision that appeared to, and in fact did, cut back on the scope of the Clean Water Act as it related to the regulation of wetlands. Now, wetlands are…the word is ‘wetland’, so it’s land that is saturated or semi-saturated with water, and provides a number of ecological functions. The Court held in the Swank case that a couple of gravel pits that had water in them in Illinois could not be regulated as wetlands by the Corps of Engineers, because they were unrelated to navigable waters, which is one of the standards in the law. And the Corps had argued that they were used by migratory birds, which was true, and the Court said that’s not enough, the state should handle this problem.
That case caused a lot of concern that there would be challenges to other aspects of the Clean Water Act in terms of its breadth. And that is what is actually happening now. There are two cases in the Supreme Court that raise the issue of whether the Clean Water Act can regulate wetlands that are adjacent to tributaries of navigable waters. The issue is the tributaries. Navigable waters - it’s clear that the Corps of Engineers can regulate anything that you can float even a toy sailboat on. But the tributaries are sort of the next step, and they have always asserted jurisdiction over tributaries. But now that is being challenged as being beyond the authority of the statute, and possibly of the Congress under the Commerce Clause. Most of us in the environmental movement, and I would venture to say most of the public, can appreciate the fact that you can’t really protect the main rivers unless you can protect the tributaries as well. And the whole program has been built on the fact that you can regulate both industrial pollution and municipal pollution and protect wetlands along those tributaries. But the Supreme Court will be hearing that case in several weeks, and it will be interesting to see how they construe the Commerce Clause authority and the statutory authority as it applies to those facts.
Q: Very recently, the Raich medical marijuana case was decided. Do you have a sense of how that case impacts the way that the courts are looking at federalism issues or Commerce Clause issues?
A: Yes, I think the Raich case does have an important bearing on these cases. It seems a little strange to an outside observer, why a case involving whether a state can allow marijuana for medicinal purposes has anything at all to do with whether you can regulate clean water. But there are some relationships. And basically, what people are concluding is that the Raich case, to some extent, reinstated a broad view of the power of Congress under the Commerce Clause. Because basically, the Court said even though the marijuana that was being grown and used was legal in California, it was not being sold in the general market for drugs. Even though those things were the case, Congress is entitled to establish a comprehensive scheme to deal with the problem, the big business, and the bad business of the drug traffic in this country. And so whatever the intentions of California, whether they were legitimate or not, their law created a loophole and a weakness in the federal framework. And so in terms of the balance of state and federal power, that case, we think, was pretty important in terms of reinstating the view that when there’s a big national problem, Congress is entitled to take a comprehensive view, and is empowered to do so.
Q: I’d like to talk to you about your sense of how the two new justices who have recently come on the Supreme Court may tip these questions of federalism, states’ rights, the Commerce Clause, and so forth. I’m curious to hear you react to Justice Roberts’ dissent in Rancho Viejo versus Norton, because that dealt very directly with environmental issues. And does that shed light on how he may decide these issues in the future?
A: Well, first let me explain a little bit what Chief Justice Roberts’ decision and opinion really was. What had happened in the case below is that the District of Columbia court had upheld the Endangered Species Act against challenges that it was unconstitutional. As frequently happens in these cases, the losing parties asked that the full court, not just three judges but all nine, rehear it. And Chief Justice Roberts voted that the case be reheard. That does not mean that he said the case was wrongly decided, but that he thought it should be reheard. And it’s somewhat a matter of speculation why he thought that, but as a legal matter the courts have uniformly upheld the constitutionality, the power of Congress to enact the Endangered Species Act, but they have used rather different rationales. And my suspicion is that Chief Justice Roberts thought this might be an opportunity to sort out what the real basis for controlling endangered species under the Commerce Clause really is. And in that was the case when he talked about the “hapless toad” that happened to live in only one county, I believe it was California. And so it’s a case where clearly only one state actually has the species that’s endangered; but if Congress can’t deal with that because it’s in one state, they clearly can’t have an effective program to arrest the decline and the acceleration of endangered species. So I don’t think you can predict what Chief Justice Roberts would rule from his action in that case.
With respect to Justice Alito, there was much less about his record and his testimony that would give you a clue as to how he would view something like these Clean Water Act cases. And these cases are…he’s going to be sitting on the Court for the first time when these cases are argued in a few weeks. He did write a dissenting opinion in a case involving whether Congress could ban the possession of illegal machine guns. And he thought that the earlier Lopez case about having guns within a thousand feet of a school suggested that maybe Congress needed to do more or couldn’t reach far enough to deal with that, with the possession of the guns. Well, in the first case, the gun was not illegal, only where the person was. In the second case, the guns were illegal and most judges, virtually all, have not agreed with Justice Alito on that point. And I think it’s hard to predict whether he would look at a water case, which is so obviously, in terms of its physical dimensions, an interstate problem, as controlled by these earlier cases. I consider that unlikely, but we will all be interested in seeing how he reacts to the arguments in the next few weeks.
Q: I know that there are a couple of these Clean Water Act cases coming up. Can you give us just a brief summary of the factual situation in each of these cases?
A: Sure. There are two cases that involve the wetlands issue that I mentioned before, whether the Congress and the Clean Water Act covers wetlands that are adjacent to tributaries of navigable waters. And the two cases, one of them involves parties that wanted to build a shopping center on their property, one was a situation where the parties wanted to build a condominium. The state and federal governments both said, “Hey, you have to have a permit to do that,” and they went ahead anyway. And so they ended up being, you know, subject to enforcement action - and ultimately challenged those actions in the court. The issue there will simply be whether regulating tributaries is an essential part of providing protection of the waters of the United States. We think it’s pretty clear that it is, and that this is an area where the states have not traditionally been active in regulating, because traditionally the Federal Corps of Engineers has taken that responsibility. So this isn’t a case like the gun near schools case where the Court could point to the fact that most states already had laws banning this. They don’t in the area of wetlands regulation. Some do, but many don’t. And so there are a lot of distinctions between the more negative Supreme Court precedents and the more positive ones in terms of the power of Congress.
Q: I think we hit all the points that I’d like to hit. It’s a huge area, and we could talk for the whole afternoon. But is there anything else that you want to add to the discussion?
A: Okay. I guess I would want to add that one of the reasons why the Environmental Law Institute and many others consider the four pillars to be important is because they think they are elements of what has made for an extraordinarily successful program that Congress has set up to protect public health and the environment. And if you look at the results, it’s been one of the most successful programs in the post-war period here in the United States. We’ve seen, since 1970, population growth of nearly 50 percent. We’ve seen increases in the economy, in the gross domestic product, that has nearly tripled. And yet pollution has gone down. Air pollution is down between 25, and in the case of lead, 98% during that period. The number of waters that are fishable and swimmable has increased dramatically. And if you ask citizens who are voters or hikers or just who sit on their porches in the city, whether things are better than they were in the seventies in the environment, I think you’ll get a pretty strong yes. And our view is that you should not tamper with that kind of success and Congress deserves credit, not challenge, for putting that framework in place. |
