Does That Line in the Sand Include Wetlands? Congressional Power and Environmental Protection

Philip Weinberg

Philip Weinberg teaches Environmental Law and Constitutional Law at St. John's University School of Law. He has written several texts, a casebook and numerous articles. A Columbia Law School (1958) graduate, he formerly headed the New York Attorney General's Environmental Protection Bureau. The author is indebted to Darren Mogil (St. John's Law School 2001) for research assistance in preparing this Dialogue.

[30 ELR 10894]

The U.S. Supreme Court's recent campaign to curtail congressional authority to legislate under the U.S. Commerce Clause¹ has inevitably fostered speculation about the validity of parts of the Clean Water Act (CWA),² the Endangered Species Act (ESA)³ and other federal environmental laws—heightened by the Court's recent decision to hear just such a claim.⁴ One view is that the decisions since United States v. Lopez,⁵ invalidating the Gun-Free School Zones Act,⁶ have lit a fuse that will surely destroy congressional power to regulate wetlands, the habitat of endangered animals and other terrain formerly taken for granted.⁷ A contrary viewpoint is that Lopez and its progeny were aberrations, incorrectly decided and soon to be so viewed by the Court itself.⁸ In my view these decisions were correct, and the Court did well to restrict the ability of Congress to ignore the limits the U.S. Constitution places on it—but the environmental statutes are on firmer ground (even those protecting wetlands) and are not in jeopardy.

Let us start with a look at this series of current decisions, together with lower court holdings examining the validity of federal environmental statutes in the wake of Lopez. Then let us predict how the Court will deal with an assault on the CWA, such as the case in which the Court recently granted certiorari, or the ESA. Finally, we should briefly explore the related issue of states' immunity from the federal environmental laws under recent Court holdings.

Lopez, Morrison, and Jones: The Court Applies the Brakes

The Lopez decision ended five decades of carte blanche for Congress. Since the Court in National Labor Relations Board v. Jones & Laughlin Steel Corp.⁹ and United States v. Darby¹⁰ sustained the federal unfair labor practice and wage and hour laws with respect to manufacturing in 1937 and 1941, it seemed to have put paid to the notion that the Commerce Clause seriously limited the power of Congress. Of course these decisions themselves overturned a series of rulings over the previous three decades that shackled congressional power over labor conditions (in the infamous case of Hammer v. Dagenhart),¹¹ wages,¹² agriculture,¹³ and the like on the theory that manufacturing, mining, and farming were not "commerce among the several states," never mind how great their actual impact on that commerce might be. Wickard v. Filburn,¹⁴ upholding the Agricultural Adjustment Act after Darby, sustained the power of Congress to regulate not just grain destined for commerce but grain retained by the farmer for his own use, noting that "home-consumed wheat [has] a substantial influence on price and market conditions"¹⁵ since it "overhangs the market and if induced by rising prices tends to flow into the market and check price increases."¹⁶ Even if not, the Court noted, "it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market."¹⁷ Thus the Court recognized that the aggregate effect of many acts—each itself perhaps insignificant if viewed in isolation—may be substantially related to commerce and justify congressional regulation. Indeed, given the national need to keep farm prices sufficient to ward off bankruptcies during the Great Depression, a contrary holding would have paralyzed the ability of Congress to deal with a serious problem.

This modern approach to the commerce power stems directly from earlier decisions recognizing that federal regulation of some activities within states is within the commerce power if the intrastate and interstate actions are intertwined—intrastate freight rates that cause unfair interstate competition, for example, where Chief Justice Hughes sustained [30 ELR 10895] congressional power as early as 1914 in the Houston Eastern & Western Texas Railway v. United States (Shreveport Rate)¹⁸ case.

It was this very concern—ruinous economic competition between states to the detriment of their own citizens—that prompted federal legislation to safeguard the environment. The Clean Air Act (CAA)¹⁹ and the CWA in particular were enacted in large measure because state controls varied enormously and often prompted a race to the bottom, with some states encouraging sources to move where pollution would be tolerated, if not encouraged. The Court recognized this concern in upholding federal regulation of strip mining where states failed to adequately do so. In Hodel v. Indiana,²⁰ Justice Marshall, writing for the Court, noted Congress could act "to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety[.]"²¹

After over 50 years during which every exercise of the commerce power was upheld in areas as varied as racial discrimination in restaurants and hotels,²² loan sharking,²³ and wages of state employees,²⁴ Congress, perhaps inevitably, grew nonchalant about the Constitution's limits on its powers. Like the farmer in the old story who wasn't greedy, but just wanted all the land that bordered his own, Congress predictably overstepped its bounds. In Lopez the Court administered a powerful reminder that the Commerce Clause is a check, not a blank check. A federal statute criminalizing the possession of a gun within a school zone, with no requirement that the gun had moved in commerce or even that it had been purchased, was quite properly invalidated. Noting the absence of any congressional findings that this activity impacted commerce, the Court rebuffed the government's after-the-fact arguments that crime itself affected commerce and interfered with education needed to prepare pupils for business and thus augment "national productivity." Three components of this decision are noteworthy: the total lack of congressional findings as to impact on commerce, the fact that this criminal statute, as well as education itself, were "areas . . . where States historically have been sovereign," and the seemingly limitless nature of the "national productivity" argument, which would presumably allow Congress to "regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example."

It is worth noting that Congress swiftly remedied these defects. It reenacted the statute with explicit findings that traffic in guns exacerbated violent crime, that such crime around schools interfered with education, and that this in turn hurt commerce. A most important finding noted that state controls could not adequately stem the traffic in guns. Even more to the point, the revised statute requires the gun to have moved in, or otherwise affect, interstate commerce.²⁵ The new law will undoubtedly withstand judicial scrutiny.²⁶

While some—including the four dissenting Justices—have described Lopez as an attempt to return to the bad old days before Darby, the Court scrupulously denied that, and instead listed three areas where Congress may legislate under the Commerce Clause: the channels of commerce, the instrumentalities of commerce (including items shipped in commerce), and activities substantially related to commerce. These categories, far from being invented by the Lopez Court, all stem from earlier decisions.

Just this year the Court followed up with a pair of opinions applying Lopez's restatement of Commerce Clause limits to other congressional forays into regions beyond its commerce power. United States v. Morrison²⁷ invalidated the Violence Against Women Act (VAWA),²⁸ a law creating a federal cause of action for damages caused by gender-motivated violence. As the Court held, this statute simply had "nothing to do with 'commerce.'" Far more than the statute in Lopez, which at least dealt with firearms, a subject of federal law for decades, this enactment federalized a category of violent crimes, a traditional subject for state and not federal sanctions. Nearly two centuries ago no less an exponent of federal power than Chief Justice Marshall stated in Cohens v. Virginia²⁹ that Congress "has no general right to punish murder committed within any of the States, [or] felonies generally."³⁰ Responding to the government's suggestion in Morrison that violence deters women from travel, education, and employment—an attempt to shoehorn this case into the rationale for the federal laws barring racial discrimination in public accommodations such as restaurants³¹—the Court pointed out that Congress may not "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."

A week later the Court, in Jones v. United States,³² skirted a finding of unconstitutionality by construing a federal law criminalizing the arson of "any building . . . used in interstate or foreign commerce or in any activity affecting [such] commerce"³³ not to cover a home occupied by its owner. Earlier cases had held the statute applicable to rented premises.³⁴ The government vainly argued the home was "used in" commerce because its gas supply, mortgage, and insurance all derived from other states. But the Court quite sensibly rebuffed that approach, holding it proved too much, and would apply the statute to virtually every home in the 50 states. This statute, if so broadly construed, would expand federal authority far beyond Lopez, indeed far beyond the most tenuous link to the commerce power.

[30 ELR 10896]

Have these three decisions so circumscribed the authority of Congress under the Commerce Clause as to jeopardize the environmental statutes that have become essential attributes of our legal system for the past three decades? Or have they done no more than draw a line in the sand, reminding Congress of its historically recognized limits? Several federal courts have had to deal with challenges to environmental regulations that asserted Congress had overstepped its bounds. Most have wisely ruled Congress had ample authority under the Commerce Clause to control water pollution, regulate wetlands, and protect endangered species.

The Commerce Clause and Environmental Protection

Several years before Lopez the Ninth Circuit dismissed a challenge to CWA § 404³⁵ as applied to a wetland not directly linked to the navigable waters of the United States as traditionally defined. That statute requires one placing dredged material or fill in the waters of the United States to obtain a permit from the U.S. Army Corps of Engineers. Although the Act refers to the "navigable waters of the United States," that term is actually defined to encompass the "waters of the United States," whether or not navigable.³⁶ In Leslie Salt Co. v. United States³⁷ the landowner, directed to obtain a permit, contended the Corps lacked jurisdiction, inter alia, because the ponds involved were insufficiently linked to interstate commerce. In this regard the court relied on the Corps' regulations, which declare waters used as habitat by migratory birds to be covered by the Act.³⁸ The court ruled "the commerce clause power, and thus the [CWA], is broad enough to extend the Corps' jurisdiction to local waters which may provide habitat to migratory birds and endangered species."³⁹ It remanded the case to the district court to decide whether the ponds were such a habitat.

On remand, the district court found migratory birds present and upheld the Corps' jurisdiction, and the Ninth Circuit affirmed.⁴⁰ The Court denied certiorari, with a lone dissent by Justice Thomas, who cited Lopez (decided a few months earlier) to argue that "in light of Lopez, I have serious doubts about the propriety of the Corps' assertion of jurisdiction [since] it is undisputed that the occasional rainwater ponds at issue . . . have never been, are not now, and probably will never be susceptible to use in interstate or foreign commerce."⁴¹ In his view this "assertion of jurisdiction over any standing water that could serve as a habitat for migratory birds" exceeds the commerce power, which "does not give . . . carte blanche authority to regulate every property that migratory birds use or could use as habitat."⁴² This presupposes that Lopez altered the law rather than applied it, and ignores the many direct links to commerce provided by migratory bird hunting and viewing, for which viable habitat is a sine qua non.

Another decision antedating Lopez, Hoffman Homes, Inc. v. U.S. Environmental Protection Agency,⁴³ similarly concerned an isolated wetland over which the U.S. Environmental Protection Agency (EPA), which shares authority in this area with the Corps, asserted jurisdiction under § 404. EPA determined the wetland's degradation "could affect interstate commerce," furnishing federal jurisdiction under both the EPA's and the Corps' rules.⁴⁴ The government again contended that migratory bird habitat suffices, and the court agreed "that it is reasonable to interpret the regulation as allowing migratory birds to be that connection between a wetland and interstate commerce."⁴⁵

But the EPA had not, in the court's view, proved that link on the facts of the case. Though both a government fish and wildlife biologist and water quality specialist testified the area was likely a suitable habitat, no one actually saw migratory birds there, and the Agency's administrative law judge found the wetland therefore not within the regulation. The EPA's reversal of that factual finding, the court ruled, was not supported by substantial evidence, and was vacated.

The Fourth Circuit, shortly after Lopez, reached an opposite conclusion as to the reach of § 404. It ruled in United States v. Wilson⁴⁶ that the Corps "exceeded its congressional authorization" in applying the CWA to wetlands with no surface connection to an interstate waterway. It concluded the rule's application of the Act to wetlands whose degradation "could affect interstate commerce" went beyond the statute—an odd conclusion since the Act does not define the "waters of the United States" at all, but one clearly motivated by the court's view that the definition as written "would appear to exceed congressional authority under the Commerce Clause."⁴⁷

A view of § 404 and its regulations more in tune with the modern approach to the Commerce Clause was adopted in United States v. Hallmark Construction Co.,⁴⁸ decided after Lopez by a district court in Illinois. That court explicitly held Lopez did not limit congressional power under the Commerce Clause to an "economic activity or transaction." Following Hoffman Homes, it noted that "the cumulative loss of wetlands . . . results in an aggregate adverse effect on interstate commerce" since it "has reduced the population of many bird species and has impaired the ability of people to hunt, trap and observe those migratory birds."⁴⁹ And unlike Hoffman Homes, there was substantial evidence here that the wetland was a suitable migratory bird habitat.

Most recently, the Seventh Circuit revisited the issue in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),⁵⁰ the case the Supreme [30 ELR 10897] Court has accepted for review. This challenge involved a landfill proposed in an area including a wetland that is a habitat for "many endangered, water dependent, and migratory birds"—a finding the court held to be "crucial." The court adhered to its ruling in Hoffman Homes that migratory bird habitat supports federal jurisdiction. As it noted, "Lopez expressly recognized, and in noway disapproved, the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce."⁵¹

The court emphasized statistics showing over 3 million Americans who hunt migratory birds each year, spending $ 1.3 billion to do so, along with 17.7 million who spent time observing birds in other states. It narrowed the definition of a "habitat" to be "not simply a place where a bird might alight for a few minutes, . . . but rather 'the place where a . . . species naturally lives[.]'"⁵² Rejecting the suggestion that habitat protection is a strictly local concern, the court pointed to treaties as far back as the Migratory Bird Treaty of 1916. Finally, the court distinguished Wilson since that case held at most that Congress could not regulate waters that "could" affect commerce, while here "the unchallenged facts show that the filling of the 17.6 acres [involved] would have an immediate effect on migratory birds that actually use the area as a habitat."⁵³

A parallel line of decisions has sustained congressional authority to protect endangered species as against similar challenges. The Lacey Act,⁵⁴ enacted in 1900, making it a federal crime to sell or offer for sale animals taken in violation of law, or to hire a guide for the illegal taking of fish or wildlife, was upheld in United States v. Romano.⁵⁵ The court noted the commercial value of wildlife, including endangered species, as well as the "distinctive gene material, which may subsequently prove invaluable to mankind in improving domestic animals or increasing resistance to disease or environmental contaminants,"⁵⁶ which extinction would destroy. And "a rash of illegal hunting" may, it found, engender these effects. As in the § 404 cases, the court pointed to the cumulative effect of a series of actions, some of which individually might fall below the threshold, but which Congress may regulate because of those cumulative impacts. Similarly, another court held Congress may bar the possession of eagle feathers and parts—not just their sale—as "targeted at reducing the illegal trafficking of eagles . . . by creating criminal liability for those who create the demand for them."⁵⁷

The ESA provision that bars the taking of listed species by injuring their habitat⁵⁸ was likewise upheld as a valid exercise of the Commerce Clause in National Association of Home Builders v. Babbitt.⁵⁹ The U.S. Department of the Interior notified a county that a proposed electric substation to power a hospital would likely cause a taking of an endangered species of fly by eliminating a critical part of its habitat. The District of Columbia Circuit held the Act was substantially related to commerce because of the need to safeguard the "genetic heritage" of these species and their potential value to humanity.⁶⁰

Finally, the Eleventh Circuit beat off a Commerce Clause challenge to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁶¹ imposing liability for remediation of hazardous waste sites. United States v. Olin Corp.⁶² was an action by the government to compel the owner of land containing hazardous waste to clean it up as an "imminent and substantial endangerment to the public health . . . or the environment."⁶³ Reversing an odd district court ruling that this Act exceeded congressional authority, the circuit court ruled that "Lopez did not alter the constitutional standard"⁶⁴ and that CERCLA was a valid regulation of commercial activity with plentiful interstate impacts. The Act's legislative history documents "agricultural losses from chemical contamination in six states [alone] at $ 283 million," much of it attributable to "purely intrastate, on-site disposal."⁶⁵ Congress also noted the threat to commercial fishing posed by such disposal. The court also unsurprisingly rejected a claim that CERCLA's coverage of waste deposited before its enactment violated the congressional intent, which could hardly have been more plainly expressed.

This phalanx of cases demonstrates the recognition by virtually every federal court that has dealt with the issue that Congress was acting well within its commerce power in enacting the environmental statutes under challenge. Let us now examine how the Commerce Clause supports § 404, the provision currently before the Court, and whether Lopez and its successors warrant a holding that Congress overstepped its authority.

Lopez Reaffirms Congress' Power to Enact § 404

In enacting the CWA, Congress was not writing on a blank slate. As early as 1899, it had adopted the precursor Rivers and Harbors Act⁶⁶ banning the obstruction or dumping of refuse in navigable waters. Even at that time the Court's reading of the Commerce Clause doubtless would have supported Congress regulating wetlands where their destruction would impact on the navigability of a watercourse [30 ELR 10898] linked to interstate traffic.⁶⁷ By 1972, when the CWA was passed, the courts had surely long since accepted the modern view of the commerce power expressed by Justice (later Chief Justice) Stone in Darby that Congress has "plenary power" over commerce and that the early 20th century decisions like Hammer unduly restricting that power were "a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since[.]"⁶⁸ The consistent approach to congressional power, except for the anomalous decisions of the Hammer interlude, has been to uphold regulation of intrastate activities with substantial effect on interstate commerce. The Shreveport Rate case,⁶⁹ decided in 1914, provides a classic example: Congress can control intrastate freight rates that affect the interstate market.

Shortly after Darby, Wickard resolved any doubts on this score. It upheld, as we have seen, congressional power over small amounts of wheat diverted by a farmer from the market and destined for home use:

Even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect."⁷⁰

And as we have seen, Lopez reaffirmed this rule. It held the "de minimis character of individual instances arising under the statute is of no consequence" as long as Congress has the power to regulate the activity. As the court in Olin reminds us, "Lopez did not alter the constitutional standard."

With these ground rules in mind, let us look at § 404 as applied to a wetland found, as in SWANCC, to be a habitat for migratory birds. Here, too, there is a long history of congressional regulation, starting with the Migratory Bird Treaty of 1916 and its implementing statute sustained by Justice Holmes in Missouri v. Holland.⁷¹ As he held, in an era when the view that wildlife were the states' actual property still prevailed:

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. . . . But for the treaty and the statute there might soon be no birds for any powers to deal with. Wesee nothing in the Constitution that compels the Government to sit by while . . . the protectors of our forests and our crops are destroyed.⁷²

It might—surely will—be pointed out that in 1916 a treaty was needed because federal power did not then extend to wildlife. But that was not because of a want of power over an activity with impacts on commerce. It was based on the antique notion that wildlife was the actual property of the states, a view the Court specifically abandoned later in Hughes v. Oklahoma,⁷³ where it held "[a] State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of 'owning' wild fish, birds or animals."⁷⁴ This ended whatever claim might be made that, as in Lopez, Jones, and Morrison, Congress had entered territory traditionally the preserve of the states' police power. To the contrary, congressional power to regulate fish and wildlife, and specifically migratory birds, has been consistently exercised without serious challenge for decades. It is indeed late in the day to question the very existence of the U.S. Fish and Wildlife Service (FWS), the statute requiring the Corps in regulating wetlands to consult with the FWS as to impact on wildlife,⁷⁵ and the provisions of the ESA protecting migratory birds' habitat, recently applied by the Court in the Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.⁷⁶ It is inconceivable that Congress after all this could be held without power to safeguard the habitat of birds so important to commerce in all the ways discussed by the courts in SWANCC and earlier in Hoffman Homes—the millions spent annua. by hunters and bird watchers, the millions of interstate journeys for those purposes and the rest.

The Court has repeatedly made clear that individual acts, themselves perhaps not affecting commerce, are subject to congressional regulation if their cumulative impact substantially affects commerce. In addition to the wheat in Wickard we need only look to the isolated act of loan-sharking in Perez v. United States,⁷⁷ unconnected to organized crime or any interstate transaction; the local purveying of barbecue to whites only in Katzenbach v. McClung⁷⁸; the narcotics laws and the rest. It was long ago noted that "if it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze."⁷⁹

The well-established concept of weighing the aggregate effects of individualactions dovetails with the equally firmly grounded principle in environmental law that cumulative impacts must be weighed. The National Environmental Policy Act (NEPA),⁸⁰ requiring federal agencies to consider the environmental impacts of their actions, makes clear that these agencies must take into account the cumulative impact of actions that, viewed individually, might fall below the threshold of significant impact on the environment and therefore not require an environmental impact statement. As the Council on Environmental Quality regulations implementing NEPA note, "cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."⁸¹

The courts have consistently mandated that agencies weigh the cumulative effects of proposed actions.⁸² The Supreme Court in Kleppe v. Sierra Club⁸³ recognized the need [30 ELR 10899] to take into account "cumulative or synergistic" environmental impacts. Indeed, agencies violate the Act when they examine "single projects in isolation without considering the net impact that all the projects in the area might have on the environment."⁸⁴ Agencies must consider the cumulative effects on a stream of numerous mining claims⁸⁵ and the impact on animal habitat of multiple road construction projects.⁸⁶ This is the environmental law equivalent to the principle that Congress, acting in furtherance of its commerce power, may consider the aggregate effect of many violations. As the Court noted in 1927, even at the zenith of its narrow reading of the Commerce Clause, "when it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented, it may do so."⁸⁷ Or, as the Court noted more recently in Lopez, the "de minimis character of individual instances arising under the statute is of no consequence."⁸⁸

This principle is particularly apt in environmental law where, it has been repeatedly observed, everything is connected to everything else.⁸⁹ The importance of wetlands, aside from their value as habitat for migratory birds (the linchpin of the regulation and decision now before the Court), has been scientifically established. Wetlands furnish vital habitat for many commercially harvested fish and shellfish, along with medicinal plants. They absorb vast quantities of stormwater, reducing flooding, with its enormous commercial impacts. They similarly absorb sewage, obviating the need for costly treatment plants.⁹⁰ Further, § 404 should be viewed as an integral component of the CWA, a comprehensive regulatory scheme encompassing manifold aspects of water quality—discharges from industry and sewage treatment plants and oil spills as well as placing fill in wetlands and waterways.

An equally important element of § 404's protection of wetlands, plainly substantially related to commerce, is the need to safeguard the genetic heritage of species that might otherwise become extinct and be irretrievably lost. The courts recognized this concern in National Association of Home Builders, Romano, and United States v. Bramble.⁹¹ The prospect of a valuable pharmaceutical product being made from a species, protected by federal law, which might well otherwise become extinct, as with the Pacific yew (used in cancer treatment), is but one of many direct links to commerce from maintaining biodiversity.

A final argument that a challenger might assert—that protecting migratory birds' habitat does not substantially affect commerce because recreational hunting and observing birds are not themselves commercial activities—is a non-starter. An activity may substantially affect commerce though not itself commercial in nature. The courts have so held with regard to not-for-profit medical facilities and recreational camps.⁹² So too with the wheat used for home baking in Wickard. The court in National Association of Home Builders correctly made short work of this contention.

Congress was, in sum, amply within its commerce power when it enacted the CWA and the ESA, and the Supreme Court is likely to so rule.

Can States Be Immune From Citizens' Environmental Suits?

In a related issue as to congressional authority over the environment, the Court's recent trio of decisions holding states immune from suits for damages under federal statutes invites litigation over whether the states are likewise shielded from citizen suits under the federal environmental statutes. The Eleventh Amendment has traditionally barred suit by a citizen against a state in the federal courts. Although by its terms the Eleventh Amendment seemingly applies only to a suit by a citizen (or a foreign subject) against another state, for a century the Court has held the provision bars suits against one's own state as well.⁹³ Injunctive relief against state officials is permitted under the 1908 decision in Ex Parte Young⁹⁴ on the theory that such a suit is not truly against the state. But Young allows prospective relief only, and does not authorize suits against states for money damages.⁹⁵

Though the Eleventh Amendment only refers to suits in the federal courts, last year the Supreme Court in Alden v. Maine⁹⁶ and two companion cases ruled, in 5 to 4 decisions, that the states' inherent sovereign immunity barred damage suits against them even in state courts by persons (including corporations) suing under federal statutes. These decisions derailed suits by state employees for overtime compensation under the federal Fair Labor Standards Act as well as suits claiming a state infringed on patents and trademarks. The Court noted that the government was free to seek damages against a state under federal statute, though not the aggrieved citizen.

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How does this impact the citizen suit provisions of the CAA, the CWA, CERCLA, and other federal environmental statutes?⁹⁷ Two circuits have recently held the Eleventh Amendment a barrier to citizen suits seeking monetary relief against states. Burnette v. Carothers⁹⁸ was an action by homeowners claiming hazardous substances discharged by a Connecticut state prison polluted their wells. They sued for injunctive relief and a civil penalty (payable to the government under the statutes) under the CWA and the Resource Conservation and Recovery Act (RCRA), and for recovery of their response costs under CERCLA. The Second Circuit affirmed dismissal of their claims on Eleventh Amendment grounds, holding suit against a state or a state official for pecuniary relief is barred by the amendment unless unmistakably waived by Congress,⁹⁹ and that the general language of the citizen suit provisions, allowing suits against states "to the extent permitted by the Eleventh Amendment," was not such a specific waiver.

Why was the injunctive relief sought by these plaintiffs not available under Young? The court dismissed that assertion since it was first raised on appeal. Although federal courts may consider such arguments, though not raised below, to avoid injustice,¹⁰⁰ the Burnette court felt no such injustice would result here—a strange conclusion since the action was in fact brought against state officials (the Environmental Protection and Corrections Commissioners) and seems to fit squarely within Young.

In addition, the court ruled the civil penalty is not a qui tam action in disguise, with the government the real party in interest. This too is odd because citizen suits were enacted to furnish added enforcement in the public interest, with citizen plaintiffs playing the role of "private attorney general," with the civil penalties they recover payable to the United States. As the same Second Circuit has held, "the very purpose of the citizens' liberal right of action is to stir slumbering agencies and to circumvent bureaucratic inaction that interferes with the scheduled satisfaction of the federal air quality goals."¹⁰¹

The court administered the coup de grace by holding the plaintiffs' suit for response costs under CERCLA also invalid. Here it was on firmer ground. In Seminole Tribe v. Florida¹⁰² the Supreme Court ruled Congress lacked power to abrogate the states' Eleventh Amendment immunity from suit for damages, unless the statute had been enacted pursuant to § 5 of the Fourteenth Amendment, empowering Congress to enforce that amendment and redress discrimination. Since CERCLA was of course enacted under the Commerce Clause, and not the Fourteenth Amendment, Congress could not authorize a private suit against a state for response costs. Indeed, Seminole Tribe had explicitly overruled an earlier Court decision allowing just such suits under CERCLA.¹⁰³

The Sixth Circuit likewise held a state immune from a citizen suit under RCRA seeking injunctive relief and civil penalties. Rowlands v. Pointe Mouillee Shooting Club¹⁰⁴ involved a shooting range whose land, contaminated with lead, was bought by the Michigan Department of Natural Resources. The plaintiff, a nearby landowner, sued under RCRA claiming the lead was a hazardous waste and had contaminated his land and groundwater as well as nearby Lake Erie. As in Burnette, he sought injunctive relief and civil penalties, though not response costs, which the Court has held unavailable under RCRA.¹⁰⁵ The court once more ruled the state agency immunized by the Eleventh Amendment. Unlike the Burnette plaintiffs, Rowlands sued the state agency, not its director, so the Young escape hatch from the Eleventh Amendment was unavailable to him. One might question why Young should allow suit against a bureaucrat but not the agency that official heads, but the courts have endorsed that distinction for decades.

The Rowlands court went on to hold that Michigan had not waived its Eleventh Amendment immunity; its waiver of its common-law sovereign immunity from suit does not waive the immunity conferred by the amendment unless the state specifically so provides. And, as in Burnette, the court rejected the plaintiff's proffered analogy with a qui tam suit since he is not suing "in the name of the government" as the qui tam statute requires.¹⁰⁶ This narrow view again ignores the congressional intent behind the citizen suit provisions of the environmental statutes. As the Court has recently held, "Congress has found that civil penalties in [CWA] cases do more than promote immediate compliance . . .; they also deter future violations."¹⁰⁷ Congress enacted citizen suit statutes for the public benefit. To find state agencies immune from these actions does violence to the congressional purpose.

Conclusion

The Supreme Court clearly should, and likely will, uphold congressional authority to protect the environment and particularly to safeguard the habitat of migratory birds and endangered species. This is thoroughly consistent with the reading of the Commerce Clause given in Lopez and the more recent cases. In short, the commerce power is still very much a valid basis for legislation relating to environmental protection.

The immunity of state agencies from citizen suit under the federal environmental statutes bestowed by the courts in Burnette and Rowlands is overbroad, and conflicts with the congressional intent. Injunctive relief surely should be available against state officials, as in Young, on proof of ongoing violations of federal environmental laws. The purpose of these statutes is to protect air, water, and land from hazardous substances whether placed there by states, municipalities, or private corporations. The historic reasons for state immunity make no sense here and ought not to shield state officials from injunctive remedies to which all others are subject.

1. U.S. CONST. art. I, § 8, cl. 3.

2. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. Solid Waste Agency of N. Cook County v. Corps of Eng'rs (SWANCC), 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000). For an argument that the "migratory bird rule" at issue in SWANCC is inconsistent with the U.S. Commerce Clause, see Timothy S. Bishop et al., One for the Birds: The Corps of Engineers' "Migratory Bird Rule," 30 ELR 10633 (Aug. 2000).

5. 514 U.S. 549 (1995).

6. 18 U.S.C. § 922(q)(1)(A).

7. See Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetland Regulation, 29 ENVTL. L. 1 (1999); Standing Alone in Murky Waters: Evaluating the Fourth Circuit's Solitary Stance on Federal Wetlands Regulation, 34 WAKE FOREST L. REV. 1179 (1999).

8. Constitutional Law—Commerce Clause—Fourth Circuit Rules That Violence Against Women Act Is an Unauthorized Exercise of Congressional Authority, 113 HARV. L. REV. 816 (2000).

9. 301 U.S. 1 (1937).

10. 312 U.S. 100 (1941).

11. 247 U.S. 251 (1918).

12. Carter v. Carter Coal Co., 298 U.S. 238 (1936).

13. United States v. Butler, 297 U.S. 1 (1936).

14. 317 U.S. 111 (1942).

15. Id. at 128.

16. Id.

17. Id.

18. 234 U.S. 432 (1914).

19. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

20. 452 U.S. 314, 11 ELR 20581 (1981).

21. Id. at 329, 11 ELR at 20585.

22. Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).

23. Perez v. United States, 402 U.S. 146 (1971).

24. Maryland v. Wirtz, 392 U.S. 183 (1968).

25. 18 U.S.C. § 922 (q)(2).

26. See, e.g., United States v. Polanco, 93 F.3d 555 (9th Cir.), cert. denied, 519 U.S. 973 (1996) (upholding federal crime for felon to possess gun that had been "in or affecting commerce").

27. 120 S. Ct. 1740 (2000).

28. 18 U.S.C. § 13981.

29. 6 Wheat. 264 (1821).

30. Id. at 426, 428.

31. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).

32. 120 S. Ct. 1904 (2000).

33. 18 U.S.C. § 8441.

34. Russell v. United States, 471 U.S. 858 (1985).

35. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

36. Id. § 1362(7), ELR STAT. FWPCA § 502(7). See Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975), so holding.

37. 896 F.2d 354, 20 ELR 20477 (9th Cir. 1990).

38. 33 C.F.R. § 328.3(a)(3).

39. 896 F.2d at 360, 20 ELR at 20480-81.

40. 55 F.3d 1388, 25 ELR 21046 (9th Cir.), cert. denied sub nom. Cargill, Inc. v. United States, 516 U.S. 955, 26 ELR 20001 (1995).

41. Cargill, 516 U.S. at 957-58, 26 ELR at 20002 (1995) (Thomas, J., dissenting).

42. Id.

43. 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993).

44. 33 C.F.R. §§ 230.3(s)(3), 328.3(a)(3).

45. The court vacated its own earlier ruling, 961 F.2d 1310, 22 ELR 21148 (7th Cir. 1992) that the regulation exceeded the Agency's authority under the Act and the Commerce Clause—a view to which Judge Manion clung in his concurring opinion, 999 F.2d at 262, 22 ELR at 21142.

46. 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

47. Id. at 257, 28 ELR at 20301.

48. 14 F. Supp. 2d 1069, 29 ELR 20168 (N.D. Ill. 1998).

49. Id. at 1074, 29 ELR at 20170.

50. 191 F.3d 845, 30 ELR 20161 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000).

51. Id. at 850, 30 ELR at 20162 (citations omitted). See Craig N. Johnston, 1999—The Year in Review, 30 ELR 10173, 10176-80 (Mar. 2000).

52. Id.

53. Id.

54. 16 U.S.C. § 3372.

55. 929 F. Supp. 502 (D. Mass. 1996).

56. 14 F. Supp. 2d at 1076, 29 ELR at 20171.

57. United States v. Lundquist, 932 F. Supp. 1237 (D. Or. 1996). See to the same effect United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996).

58. 16 U.S.C. § 1538(a)(1), as construed by the Court in Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 25 ELR 21194 (1995).

59. 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997).

60. One of the three-judge panel, Judge Wald, also asserted the provision was a valid regulation of the channels of commerce since it "is necessary to enable the government to control the transport of the endangered species" and is designed to keep these channels "free from immoral and injurious uses" (citing Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)).

61. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

62. 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997).

63. 42 U.S.C. § 9606(a), ELR STAT. CERCLA § 106(a).

64. 107 F.3d at 1509, 27 ELR at 20779.

65. Id. at 1511, 27 ELR at 20780.

66. 33 U.S.C. §§ 401-467.

67. See The Daniel Ball v. United States, 77 U.S. 557 (1871) (upholding congressional authority over ship on intrastate river that was part of "a continuing highway over which commerce is or may be carried on with other States. . . .").

68. 312 U.S. at 100.

69. 234 U.S. at 432.

70. 317 U.S. at 128.

71. 252 U.S. 416 (1920).

72. Id. at 435.

73. 441 U.S. 322, 9 ELR 20360 (1979).

74. Id. at 334, 9 ELR at 20364 (citation omitted).

75. See, e.g., Zabel v. Tabb, 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

76. 515 U.S. 687, 25 ELR 21194 (1995).

77. 402 U.S. 146 (1971).

78. 379 U.S. 294 (1964).

79. United States v. Women's Sportswear Mfg. Ass'n. 336 U.S. 460, 464 (1949).

80. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

81. 40 C.F.R. § 1508.7.

82. City of Carmel-by-the-Sea v. Department of Transp., 123 F.3d 1142, 27 ELR 21428 (9th Cir. 1997); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 29 ELR 21168 (9th Cir. 1999).

83. 427 U.S. 390, 410, 6 ELR 20532, 20537 (1976).

84. City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312, 21 ELR 20001, 20003 (9th Cir. 1990).

85. Sierra Club v. Penfold, 664 F. Supp. 1299, 17 ELR 21061 (D. Alaska 1987), aff'd, 857 F.2d 1307, 19 ELR 20207 (9th Cir. 1988).

86. Thomas v. Peterson, 753 F.2d 754, 15 ELR 20225 (9th Cir. 1985).

87. Westfall v. United States, 274 U.S. 256, 259 (1927).

88. 514 U.S. at 549.

89. See National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1046, 28 ELR 20403, 20405 (D.C. Cir. 1997) (in determining the validity of the ESA, the court may look at, not only the effect of the extinction of the individual species at issue, but at the aggregate effect of the extinction of all similarly situated endangered species); SWANCC, 191 F.3d 845, 850, 30 ELR 20161, 20162 (7th Cir. 1999), cert. granted, 120 S. Ct. 2003 (2000) (using the cumulative impact doctrine where, even though a single activity may have no discernible effect on interstate commerce, the activity may be regulated because of its aggregate effect); Nova Chems., Inc. v. GAF Corp., 945 F. Supp. 1098, 1106, 27 ELR 20530, 20535 (E.D. Tenn. 1996) (noting that the aggregate effect of releasing hazardous waste undeniably impacts interstate commerce).

90. See WILLIAM A. NIERING, WETLANDS 30-35 (1985); ANN VILEISIS, DISCOVERING THE UNKNOWN LANDSCAPE: A HISTORY OF AMERICA'S WETLANDS 2, 4 (1997); CLARE SHINE & CYRILLE DE KLEMM, WETLANDS, WATER, AND THE LAW 7-10 (1999).

91. 103 F.3d 1475 (9th Cir. 1996) (discussed supra note 57).

92. United States v. Bird, 124 F.3d 667 (5th Cir. 1997) (abortion clinic); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997) (camp).

93. Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S. 651 (1974).

94. 209 U.S. 123 (1908).

95. An exception, not relevant to environmental statutes, exists for suits based on statutes enacted under § 5 of the Fourteenth Amendment to redress various forms of discrimination. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

96. 527 U.S. 706 (1999); see also Florida Prepaid Secondary Sch. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999) and College Sav. Bank v. Florida Prepaid Secondary Sch. Expense Bd., 527 U.S. 666 (1999). For a discussion of these decisions and their implications for environmental law, see Stephen R. McAllister & Robert L. Glicksman, State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism, 29 ELR 10665 (Nov. 1999).

97. 42 U.S.C. § 7604, ELR STAT. CAA § 304 (air); 33 U.S.C. § 1365, ELR STAT. FWPCA § 505 (water); 42 U.S.C. § 9659, ELR STAT. CERCLA § 310 (CERCLA); 42 U.S.C. § 6972, ELR STAT. RCRA § 7002 (Resource Conservation and Recovery Act).

98. 192 F.3d 52, 30 ELR 20124 (2d Cir. 1999).

99. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).

100. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976).

101. Friends of the Earth v. Carey, 535 F.2d 165, 173, 6 ELR 20488, 20492 (2d Cir. 1976).

102. 517 U.S. 44 (1996).

103. Pennsylvania v. Union Gas Co., 491 U.S. 1, 19 ELR 20974 (1989).

104. 182 F.3d 918 (6th Cir. 1999).

105. Meghrig v. KFC W., Inc., 516 U.S. 479, 26 ELR 20820 (1996).

106. 31 U.S.C. § 3730(b).

107. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 120 S. Ct. 693, 706, 30 ELR 20246, 20249 (2000).