SWANCC: Constitutional Swan Song for Environmental Laws or No More Than a Swipe at Their Sweep?

December 2001
ELR 11493
Charles Tiefer

The U.S. Supreme Court decision last term in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), striking down the migratory bird rule for wetlands regulation, warrants some reading of the Court's environmental tea leaves. Some fine commentary in these pages still leaves murky whether the opinion seriously imperils other environmental laws and regulations. Chief Justice William H. Rehnquist's SWANCC opinion for a five-Justice majority had worrisome implications that the new restrictive view of the U.S. Commerce Clause, intensified by United States v. Morrison in 2000, could bar national environmental legislation that "alters the federal-state framework by permitting a federal encroachment upon a traditional state power" such as "the States' traditional and primary power over land and water use." Peering closely at those tea leaves, the SWANCC decision still allows the views that the Court—particularly crucial Justices Sandra Day O'Connor and Anthony M. Kennedy—acted more on the basis of their narrow statutory interpretation than with a view toward striking down environmental legislation. In particular, appellate courts sensing the Court's drift should not take SWANCC as any more than a light swipe, not a serious strike, at the Endangered Species Act (ESA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The author is Professor, University of Baltimore Law School; B.A., summa cum laude, Columbia College, 1974; J.D., magna cum laude, Harvard Law School 1977. He was Solicitor and Deputy General Counsel of the House of Representatives in 1984-1995.

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