Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers
After being denied a Clean Water Act permit to build a garbage dump atop local ponds used by migratory birds, a group of municipalities argues that federal regulation of the ponds is unconstitutional; a divided Supreme Court limits the federal jurisdictional rule, but does not decide the constitutional issue
Discussion & Analysis: A group of Chicago-area municipalities sought to build a garbage dump in an area containing permanent and seasonal ponds used by migratory birds. When the U.S. Army Corps of Engineers declined to issue a federal Clean Water Act permit, the municipalities sued. They argued not only that the Corps’ “Migratory Bird Rule” violated the Clean Water Act, but also—and much more significantly—that Congress lacked the constitutional power to regulate the ponds at all. The SWANCC plaintiffs were relying heavily on the Supreme Court’s then-recent rulings in the Lopez and Morrison cases, which had struck down certain federal laws deemed to exceed Congress’s constitutional power to regulate interstate commerce—a radical move by the Court that had been unprecedented in the post-war era. The SWANCC case presented the Court with an opportunity to expand its “federalism revolution” into the realm of environmental law, by ruling that the Clean Water Act reached further than Congress’s Commerce Clause power allows.
Without directly addressing the constitutionality of the Clean Water Act, the Supreme Court ruled in favor of the municipalities, finding that the Army Corps rule violated the scope of the Act as intended by Congress. However, the majority opinion, authored by Chief Justice William Rehnquist, makes clear that the Court was ruling with an eye toward the constitutional issue. The Court wrote that the Army Corps’ argument in the case raised “significant constitutional questions,” and that interpreting the Clean Water Act to assert jurisdiction over the SWANCC ponds “would result in a significant impingement of the States’ traditional and primary power over land and water use.” A four-Justice dissent contended that the majority’s “miserly construction” of the Act had incorrectly limited the broad federal jurisdiction that Congress had intended to assert when it enacted the law.
The Supreme Court’s fractured and much-maligned SWANCC ruling was followed in 2006 by another foray into Clean Water Act jurisdiction in Rapanos v. United States. Again, landowners questioned the constitutional issue, and again, the Court declined to reach it. This time, the Court split by a count of 4-1-4, generating no majority opinion and leaving Justice Anthony Kennedy’s solo concurring opinion (and his case-by-case “significant nexus” test for finding Clean Water Act jurisdiction) to provide the most likely source of a legal holding in Rapanos. The lower courts continue to struggle with how to apply this splintered ruling.
A ruling in either SWANCC or Rapanos that the Clean Water Act was unconstitutional would have dealt a devastating blow not only to water protection, but also to the full range of other environmental values that are protected by comprehensive federal laws enacted by Congress under its Commerce Clause power. The Clean Water Act has now twice dodged a constitutional bullet—and in each instance the Act was spared by the vote of a single Supreme Court justice. Frustration over SWANCC and its sequel, Rapanos, has resulted in newfound momentum in Congress to amend the Clean Water Act and to clarify that Congress has always intended the scope of the Act to be construed much more broadly than the Supreme Court has claimed in these two rulings. If Congress does pass such an amendment, it seems almost certain that the Supreme Court would eventually be presented with—and would have no choice but to rule on—yet another constitutional challenge to the reach of the Clean Water Act.
Key Opinion: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos and the government settled the civil claims against him and co-defendants in 2008).
Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos and the government settled the civil claims against him and co-defendants in 2008).
See Also: For an in-depth discussion of how the Supreme Court’s rulings in SWANCC and Rapanos affect federal protection of wetlands and streams, see the Environmental Law Institute’s Clean Water Act Jurisdictional Handbook. The Institute also maintains a related summary of important post-Rapanos rulings in the lower courts.
The two Supreme Court rulings that provide the basis for all modern Commerce Clause challenges to environmental and other federal laws are United States v. Lopez, 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act), and United States v. Morrison, 529 U.S. 598 (2000) (striking down the Violence Against Women Act). For further analysis of the Commerce Clause basis for the Clean Water Act, see the Environmental Law Institute’s Anchoring the Clean Water Act: Congress’s Constitutional Sources of Power to Protect the Nation’s Waters.