A Future Legal Battleground: Environmental Regulation

Stream channel in suburban Washington, D.C.

This stream channel in suburban Washington, D.C., is subject to federal regulation. Developers want to change that. Calli Barker Schmidt hide caption

itoggle caption Calli Barker Schmidt

Business groups hope that the new Supreme Court will ease some of the burdens of environmental regulation by limiting the federal government's reach under the Commerce Clause.

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STEVE INSKEEP, host:

The business news focuses on which businesses the government may regulate.

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INSKEEP: One Bush administration goals has been to lighten the burden of government regulation. That idea delights business groups and disturbs environmentalists. Now that President Bush has had a chance to nominate two new justices to the US Supreme Court, the court could redraw the boundaries of regulation. NPR's Kathleen Schalch reports.

KATHLEEN SCHALCH reporting:

At the northern fringe of Washington, DC's, suburbs there's a forest. Meandering through it is what looks like a miniature stream, except for one thing: There's no water in it.

Mr. ANDREW DARE(ph) (Environmental Consultant for Developers): And it only flows when the water runs off the road.

SCHALCH: Andrew Dare, an environmental consultant for developers, points out something else. Seventy feet from the drainpipe where the channel begins, it appears to end.

Mr. DARE: It's not navigable. It's not--you can't put a boat in it. There's no fish in it.

SCHALCH: Still, according to Dare's map, it's subject to federal regulation.

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Mr. DARE: And you can see it's labeled `ephemeral channel,' and this little arrow points to the pipe opening at the road where it comes down here.

SCHALCH: The federal government says it can regulate ephemeral channels under the Clean Water Act because water can flow from them into aquifers and tributaries and then into navigable waterways. And Congress can regulate navigable waterways because the commerce clause of the Constitution gives it jurisdiction over interstate commerce. Developers says this is a case of regulation run amuck. Duane Desoderio(ph) is a lawyer for the National Association of Home Builders.

Mr. DUANE DESODERIO (National Association of Home Builders): When the Clean Water Act was enacted in 1972, what Congress had in mind were things like the Cuyahoga River being on fire. Our waterways were burning; that's what Congress wanted to make sure didn't happen. Congress didn't intend for every little rivulet or every little puddle that could ultimately wend its way downstream to be subject to federal control or authority. The arm of the federal government can't reach into every mundane aspect of our lives.

SCHALCH: Desoderio's hopeful that a majority of justices on the new Supreme Court will now agree. One day after Chief Justice John Roberts was confirmed, the court agreed to hear two new cases, lawsuits filed by developers that challenge the reach of the Clean Water Act. Desoderio says the court won't just be examining the meaning of the law; it will go further and look at what kind of laws Congress has the right to pass.

Mr. DESODERIO: The statutory question is whether or not these features are `navigable waters' in terms of the statue. The constitutional question is whether or not these features are within Congress' authority to regulate interstate commerce.

SCHALCH: The court's new eagerness to take on these questions is unsettling to environmentalists, including David Bookbinder, a senior attorney with the Sierra Club. He agrees that this case could decide how far upstream Congress has the power to regulate. But he says this isn't just about whether developers can dig ditches or fill wetlands.

Mr. DAVID BOOKBINDER (Senior Attorney, Sierra Club): The biggest impact by far would be on the heart of the Clean Water Act, which is the controls on pollution coming out of factories and sewage treatment plants and industrial facilities, most of which discharge into very small waterways and tributaries. And the question is if Congress doesn't have authority to regulate beyond a certain point, the day that decision comes down is the day that all those factories and sewage treatment plants can tear off the controls and start discharging whatever they want.

SCHALCH: The states could step in at that point, but they wouldn't have to. The Environmental Protection Agency seems to agree that these legal challenges could pare back its own authority considerably. NPR's obtained a new EPA document which indicates that 40 percent of the facilities regulated under the Clean Water Act discharge waste into ephemeral streams and other waterways so far upstream that under a narrower interpretation of the commerce clause, Congress might not be able to regulate them at all.

And more than the Clean Water Act could ride on what the court decides. If it concludes that Congress that stretched the commerce clause too far, then lots of other environmental legislation, from the Clean Air Act to the Endangered Species Act, could face new scrutiny, as well. Again, David Bookbinder.

Mr. BOOKBINDER: We've seen these sorts of challenges, the commerce clause challenges to congressional authority, being raised in the last few years against every major environmental law. And we've won them all, but now the court seems to be poised to throw that certainty into question.

SCHALCH: The nomination of Judge Samuel Alito to the Supreme Court adds to that uncertainty, according to Bob Shull, director of regulatory policy for the advocacy group OMB Watch. He says up until now when Congress has claimed broad powers under the commerce clause, the Supreme Court has given it the benefit of the doubt.

Mr. BOB SHULL (Director of Regulatory Policy, OMB Watch): The question is: Does the government have a reason for what it's doing? It's a very simple test. There's almost no scrutiny applied. It's a very gentle standard of review for the government.

SCHALCH: Based on Alito's legal opinions, Shull believes Alito would push for a more stringent standard and ask for hard, empirical proof that whatever Congress wants to regulate really does affect commerce between the states.

A more conservative court joined by Judge Alito might also set the bar higher when it comes to lawsuits and who has the right to file them. David Bookbinder argues that it often takes a lawsuit filed by environmentalists to get a law enforced.

Mr. BOOKBINDER: The problem is standing. You have to show that you've been hurt in some way by the bad thing that's been done by the polluter.

SCHALCH: How the court applies that test will determine who gets through the courthouse door. University of Wisconsin law Professor Ann Althouse says conservatives and liberals on the court apply the test differently.

Professor ANN ALTHOUSE (University of Wisconsin): Judges who are on the conservative side have been much more willing to be particular about who gets to bring the lawsuit, that they ought to be truly injured by the activity of the defendant and that they're really litigating in order to get a remedy that will relieve them from their injury.

SCHALCH: Based on Alito's legal opinions, Althouse expects him to side with the conservatives.

Prof. ALTHOUSE: Then that might mean that public interest groups, ideological groups, groups that have political passion about something are not going to be able to find as easy of ways to bring those lawsuits, and that might lessen the amount of litigation.

SCHALCH: For business groups, that's a top priority. That's one reason they're working just as hard to Alito confirmed as environmental groups are to defeat him. Kathleen Schalch, NPR News, Washington.

INSKEEP: This is MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE (Host): And I'm Renee Montagne.

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