New Blog on Rapanos Commerce Clause Case:
In anticipation of the Supreme Court issuing its decision in the Rapanos case, Tim Sandefur (of Positive Liberty blog) and the Pacific Legal Foundation for whom he works has set up a Rapanos Blog. Pacific represents John and Judith Rapanos. Here is its synopsis of the case:
Since 1988, John and Judith Rapanos have been embroiled in a dispute with the government over federal regulation of remote wetlands on their property. For more than ten years they have had to defend themselves in court against an expansive interpretation of the Clean Water Act the U.S. Supreme Court has never sustained and arguably rejected in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC")--an interpretation that has created a stark conflict among the Courts of Appeals and which raises serious constitutional questions.One of the articles about the case to which it links is by our own Jonathan Adler: Supreme Clean Water Day. Here is his summary of the issues in the case:
As a result of a separate criminal suit, John Rapanos now faces jail time in a federal penitentiary while in this civil case both he and his wife are subject to fines and mitigation fees totaling several million dollars. The Rapanos are accused of filling wetlands--shallow depressions--on their property without a federal permit in purported violation of section 404(a) of the Clean Water Act.
The issues raised by Rapanos and the Carabells are hardly new. The precise scope of federal authority to regulate "navigable waters of the United States" has been contested since the CWA was enacted in 1970. Initially, the U.S. Army Corps of Engineers denied the law applied to wetlands, but environmentalists sued and the Army Corps changed its mind. Some years later, the Supreme Court upheld the regulation of wetlands adjacent to navigable waters, holding that the CWA covers those wetlands "inseparably bound up with the 'waters' of the United States." The Court considered the scope of "navigable waters" again in 2001, this time finding the federal government had gone too far. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court rejected the federal government's claim that the presence of migratory birds allowed the Army Corps to regulate isolated ponds lacking any hydrological connection to navigable waters.Depending on its outcome and holding, Rapanos could be decided on statutory grounds, or it could signal whether the aspect of the "New Federalism" that sees some limits on the Commerce Clause power of Comgress is dead or alive.
The Carabells and Rapanos argue that SWANCC is proof the federal government lacks the authority to regulate their lands. It is one thing to regulate wetlands directly adjacent to navigable waters, they claim, quite another to control every parcel abutting the tributaries of such waters, let alone those lands alongside ditches that drain into the tributaries. The federal government maintains that any hydrological connection is enough to sustain federal jurisdiction, and that without control over adjacent wetlands federal regulators cannot fulfill their mandate to protect the waters of the United States from pollution and other threats. However reasonable this argument may seem, it is a license for federal regulatory control over literally millions of acres of private land.