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THE POTENTIAL IMPACT OF
UNITED STATES v. LOPEZ ON
ENVIRONMENTAL REGULATION
LORI J. WARNER*
United States v. Lopez, which held a statute unconstitutional for
exceeding Congress's commerce power, raises complex issues
regarding federalism and the nature and scope of federal authority
under the Commerce Clause. The decision is significant in relation
to environmental regulation because many environmental protection
statutes were passed pursuant to the commerce power and may now
be susceptible to challenge. This Article assesses the vulnerability of
certain provisions of the Clean Water Act and the Endangered
Species Act in light of the Lopez decision. In particular, the Article
explores whether the destruction of isolated wetlands and the
degradation of endangered species' habitat are economic activities
that substantially affect interstate commerce. While plausible
arguments may be made to the contrary, this author ultimately
concludes that the analyzed provisions satisfy Lopez, and are thus
capable of withstanding constitutional challenge.
INTRODUcTION
Under Article I, Section 8, Clause 3 of the Constitution, Congress
has the power to regulate interstate commerce. Because courts have
defined the commerce power quite broadly since the 1930s, Congress
has enjoyed some sixty years of essentially plenary legislative power.
So long as Congress could show that the reguilated activity affects"
- Environmental attorney with Porter & Hedges, L.L.P. in Houston, Texas. B.S., University of Illinois (1982); J.D. cum laude, South Texas College of Law (1993); L.L.M., University of Houston (1996). Law clerk to the Honorable Vanessa D. Gilmore, Southern District of Texas; briefing attorney to the Honorable Susan Larsen, Eighth Court of Appeals.
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interstate commerce, however indirectly,^ the Court^ would^ uphold^ the
exercise of federal authority.'
Despite broad judicial interpretation giving^ the^ Commerce^ Clause
seemingly infinite reach, the United States^ Supreme^ Court^ has
consistently adhered to the notion that the^ commerce^ power^ is
limited Until its five-to-four decision in United States^ v.^ Lopez,^3
issued April 26, 1995, however, the Court^ seemed^ unable^ to^ fix^ an
outer limit^ on^ the^ commerce^ power.^4 In^ Lopez,^ the Court^ held^ that
Congress had exceeded the authority granted to^ it^ by^ the^ Commerce
Clause in enacting the Gun-Free School^ Zones^ Act^ of^ 1990.'
In reaching its decision, the majority ruled that^ under^ the
Commerce Clause, Congress can permissibly regulate economic
activity that substantially affects interstate commerce.^6 Possession
of a gun in a school zone, however,^ was^ found^ to^ be^ a^ noncommer- cial, purely local activity in an area of regulation traditionally left to
the states, and thus beyond the reach of the commerce^ power.^7
Though Lopez purports to be a Commerce Clause^ decision,^ the
majority opinion seems influenced more by an underlying concern
for protection of state sovereignty than by the absence of^ a^ nexus^ to
interstate commerce!^ In^ reaching^ its^ conclusion^ that^ possession^ of
a gun in a school zone is not an economic activity that substantially
1. See, e.g., United States v. Darby, 312 U.S. 100 (1941) (upholding imposition^ of^ federal standards for minimum wage and maximum hours under Fair^ Labor^ Standards^ Act); Wickard v. Filburfi, 317 U.S.^111 (1942)^ (upholding^ federal^ regulation^ of^ wheat^ grown^ for^ home consumption). 2. See, eg., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95 (1824) (reasoning that^ the enumeration of^ powers^ "presupposes^ something^ not^ enumerated");^ National^ Labor^ Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1,^37 (1937)^ (warning^ that^ the^ scope^ of commerce authority "must be considered in^ light^ of^ our^ dual system^ of^ government"^ and^ may not be so expansive as to "create a^ completely centralized^ government");^ United^ States^ v.^ Lopez, 115 S.Ct. 1624, 1634 (1995) (indicating^ the^ commerce^ power^ is^ limited^ by^ the^ enuneration^ of powers doctrine and concepts^ of^ federalism).
- 115 S.CL 1624 (1995).
- Starting with its decision^ in^ Jones & Laughlin^ Steel,^ the Court had^ not^ found any instance in which Congress exceeded its commerce authority until its decision in Lopez.
- The Gun-Free School Zones Act of 1990 forbids any individual from knowingly possessing a firearm in a place he knows to^ be^ a^ school^ zone.^^18 U.S.C.^ §^ 922(q)(1)(A)^ (1994).
- Lopez,^^115 S.Ct.^ at^ 1630.
- Id.^ at^ 1634. 8. For instance, the Court "pause[ld] to consider the implications of^ the Government's arguments" and concluded^ they^ were^ limitless:^ "Under^ the^ theories^ that^ the^ Government presents in support^ of^ §^ 922(q),^ it^ is^ difficult^ to^ perceive any^ limitation on^ federal power,^ even in areas.., where [the] States historically have been sovereign." Id. at 1632.
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Being the first case in decades to find that Congress exceeded its
power under the Commerce Clause, Lopez may signal a new phase
in Commerce Clause jurisprudence with far-reaching implications. To
appreciate the significance of Lopez, it is necessary to understand its
historical context. Section I of this article reviews landmark Com-
merce Clause cases preceding Lopez. Because preservation of the
proper balance between state and federal authority is an underlying
theme of Lopez, Section II of this article also discusses attempts by
the Court to develop a working concept of federalism. The Lopez
decision itself is then analyzed in Section III, and the application of
the Lopez standard to environmental regulations is analyzed in
Section IV. Lopez presents little threat to many federal environmen-
tal protection statutes, such as pollution abatement statutes, because
the regulated activity is economic and substantially affects interstate
commerce. In other areas of regulation, however, such as the
regulation of isolated wetlands, the outcome is not as certain because
the connection to interstate commerce is more attenuated. Ultimately,
the implications of Lopez will depend on the manner in which the
Court defines the terms "economic" and "substantially affects," and
the extent to which the Court protects principles of federalism.
I. HISTORICAL OVERVIEW OF COMMERCE CLAUSE JURISPRU-
DENCE
The United States Constitution creates a federal government of
specifically enumerated powers. 3 One of the powers delegated to
Congress in the Constitution is the power "[t]o regulate Commerce
migratory waterfowl); J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endahgered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. LJ. 139 (1995) (analyzing potential application of Lopez to CWA and ESA); Edward Alburo Morrissey, Legislative Reform, The Jurisdictionof the Clean Water Act over Isolated Wetlands. The Migratory Bird Rule, 22 J. LEGIS. 137 (1996) (advocating amendment to CWA to extend legislative protection to isolated wetlands potentially used by migratory birds). See also, Stephen M. Johnson, United States v. Lopez: A Misstep, But Hardly Epochalfor FederalEnvironmental Regulation, 5 N.Y.U. ENVrL. L.J. 33 (1996) (arguing that federal environmental laws, including Section 9 of ESA and Section 404 of CWA, will continue to be immune to Commerce Clause challenges after Lopez). Professor Johnson's article, published after this article was completed, was not reviewed in preparation of this article. However, it addresses similar issues and reaches similar conclusions.
- The Constitution provides a lengthy list of enumerated powers that Congress can exercise. U.S. CONST. art. I, § 8, cls. 1-18. Congress can only exercise powers derived from this list. See e.g., Gregory v. Ashcroft, 501 U.S. 452,457 (1991) (holding that the federal government has limited powers).
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UNITED STATES V. LOPEZ
with foreign Nations, and among the several States, and with the
Indian Tribes[.]"' 4 It is this clause to^ which^ most^ federal^ power^ can
be traced.' 5
A. Gibbons v. Ogden: The Roots of Modern Commerce Power
Congress's power^ to^ regulate^ interstate^ commerce has^ traditional-
ly been interpreted^ quite broadly.^ The^ nature^ of^ the^ commerce^ power
was first described by the Supreme Court^ in^ Gibbons^ v.^ Ogden.^6
Indeed, the breadth the commerce power has^ enjoyed^ is^ said^ to^ have
its roots in Gibbons.^7 At issue in Gibbons was the constitutionality
of a New York statute that granted an^ exclusive^ franchise^ permitting
steamships to trade between New York and New Jersey^ only^ with^ the
permission of the franchisee.'Y The Court held that^ navigation^ could
be regulated under the commerce power even while the vessel was
within the interior waters of a state and not merely at the boundary
,where it^ crossed^ into^ the^ waters^ of^ another.'
9
Writing for the Court, Chief Justice^ Marshall described Con-
gress's authority under the Commerce Clause^ broadly^ as^ the^ power
"to prescribe the rule^ by^ which^ commerce^ is^ to^ be^ governed."'
Marshall wrote: "This power, like all others vested^ in^ Congress,^ is
complete in itself, nray be exercised to its^ utmost^ extent,^ and
acknowledges no limitations, other than are^ prescribed^ in^ the
- U.S.^ CONST.^ art.^ I,^ §^ 8,^ cl.^ 3.
- See Richard A. Epstein, The Proper Scope^ of^ the^ Commerce^ Power,^^73 VA.^ L.^ REV. 1387 (1987) ("The labor statutes, the civil rights statutes, the farm and agricultural^ statutes, and countless others rest on the commerce power, or more accurately on a construction of^ the commerce clause that grants the federal government jurisdiction so long as it can show (as it always can) that, the regulated activity burdens, obstructs, or affects interstate^ commerce, however indirectly.").
- 22 U.S. (9 Wheat.) 1, 189-190 (1824).
- See, e.g., James M. Maloney, Note, Shooting for an Omnipotent Congress:^ The Constitutionalityof FederalRegulation of IntrastateFirearmsPossession, 62 FORDHAM L. REv. 1795, 1803 (1994); Epstein, supra note 15, at 1400. 18. See Epstein, supra note 15, at 1401 n.36. See also,^ Gibbons,^^22 U.S.^ (9^ Wheat.)^ 1.^ In response to the New York statute, New Jersey passed a retaliatory law allowing citizens^ of^ New Jersey sued in New York for violating the New York law to recover treble damages against the New York citizen in a New Jersey court. Epstein, supra note 15, at 1401 n.36.
- See Gibbons,^22 U.S.^ (9^ Wheat.)^ at^194 ("Commerce^ among^ the^ States,^ cannot^ stop^ at the external boundary^ line^ of^ each^ State,^ but^ may^ be^ introduced^ into^ the^ interior.");^ see^ also Maloney, supra note 17, at 1804.
- Gibbons, 22 U.S. (9 Wheat.) at 196.
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When eventually presented with the question of the scope of
congressional authority under the Commerce Clause, the Court
applied various, often conflicting approaches. In^ some^ cases,^ the
Court struck^ legislation^ by^ applying^ formalistic distinctions^ between
"manufacture," "mining," or "production," and "commerce."'^ The
Court also drew distinctions^ between^ "direct" and^ "indirect"^ effects
on commerce, striking regulation of activity that exerted only an
indirect effect on commerce.^26 Other decisions addressed^ Congress's
authority to prohibit the interstate movement of items in^ commerce^27
and the instruments of commerce. 28
C. Modern Commerce Power
Eventually the Court recognized that many^ types^ of^ intrastate
activity had such effects on interstate commerce as to make the
intrastate activity^ a^ proper^ subject^ for^ federal^ regulation^9 A^ key
point for modem Commerce Clause jurisprudence was^ reached^ in
National Labor Relations^ Board^ v.^ Jones^ &^ Laughlin^ Steel^ Corp.,^3 "
25. See, e.g., United States v.^ E.C.^ Knight^ Co.,^ 156 U.S.^ 1,^16 (1895)^ (applying^ manufacture- commerce distinction to hold manufacturers' combined^ control^ of^ some^ 98%^ domestic^ sugar refining capacity beyond the reach of Sherman Act; Court^ reasoned^ that^ conspiracies^ to^ control manufacture, agriculture, mining, production, wages, or prices had too "indirect" an^ effect^ on interstate commerce); Hammer v. Dagenhart, 247 U.S.^ 251,^^272 (1918),^ overruled^ by^ United States v. Darby, 312 U.S. 100 (1941) (striking statute prohibiting interstate^ shipment^ of^ goods produced by child labor as regulating "manufacturing" rather^ than^ "commerce");^ Carter^ v. Carter Coal Co., 298 U.S. 238, 303-04 (1936) (striking^ statute^ prohibiting unfair^ labor^ practices in coal industry as regulating "mining" and "production" rather^ than^ "commerce"). 26. See, eg., Carter Coal^ Co.,^^298 U.S.^ at^309 (holding^ no^ congressional^ authority^ to regulate wages and hours for miners and price of coal because such^ had^ only^ secondary^ and indirect effect on interstate commerce); A.L.A. Schechter Poultry Corp.^ v.^ United^ States,^295 U.S. 495,548 (1935) (holding wage and hour provisions of National Industrial Recovery^ Act^ had no direct^ relation^ to^ interstate^ commerce);^ Railroad^ Retirement^ Bd.^ v.^ Alton^ R.R.^ Co.,^295 U.S. 330,368 (1935) (holding mandatory retirement and pefision plan^ for^ railroad^ employees^ was^ too remote from any regulation of commerce as commerce);^ see^ also,^ Wickard,^^317 U.S.^ at^121 (describing development^ of^ Commerce^ Clause^ jurisprudence).
- See,^ e.g.,^ Lottery^ Case,^188 U.S.^321 (1903)^ (upholding^ congressional^ power^ to^ prohibit interstate movement of lottery^ tickets).^ But^ see^ Hammer,^247 U.S.^251 (striking^ down^ prohibition on interstate transportation^ of^ goods^ manufactured^ in^ violation^ of^ child^ labor^ laws).
- See, e.g., Houston, E.-&^ W. Tex. Ry.^ Co.^ v.^ United States (Shreveport^ Rate^ Cases),^234 U.S. 342 (1914) (Court upheld federal^ rate^ schedules^ for^ interstate^ carriers reasoning^ that congressional power over interstate^ carriers^ as^ instruments^ of^ interstate^ commerce^ extended^ to the incidental regulation of^ intrastate^ commerce^ having^ a^ close^ and^ substantial relationship^ to interstate traffic). 29. See Wickard, 317 U.S. at 123.
- 301 U.S. 1 (1937).
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decided by the Court in 1937. In Jones & Laughlin^ Steel,^ the^ Court
abandoned the distinction between "direct" and "indirect" effects on
interstate commerce and held that it is within Congress's power^ to
regulate intrastate^ activities^ that^ have^ such^ a close^ and substantial
relation to interstate commerce as to burden commerce. 31 The
Court also declined to^ apply^ the^ manufacturing/commerce^ distinction
expounded in earlier cases. 2 Instead,^ the^ Court^ concluded^ that
labor relations were within the^ broad^ powers^ of^ Congress^ to^ protect
interstate commerce from burdens and^ 6bstructions, regardless of^ the
source.
In the years following Jones^ &^ Laughlin^ Steel,^ the^ Court^ defined
the reach of the commerce power expansively. Over^ time,^ the^ Court
discarded the distinctions that had^ previously^ limited^ the^ exercise^ of
the commerce power. For instance, in United States v. Darby," the
Court declared that Congress's power over^ interstate^ commerce^ is^ not
confined to the regulation of^ commerce^ among^ the^ states.^ Overruling
earlier precedent,^35 Darby held that Congress^ had^ the^ power^ to
exclude any article from interstate^ commerce.^36 Darby^ determined
that Congress's power over^ interstate^ commerce^ extends^ to^ those
intrastate activities "which so^ affect^ interstate^ commerce^ ...as^ to
make regulation of them appropriate means to^ the^ attainment^ of^ a
legitimate end, the exercise of the granted power^ of^ Congress^ to
regulate interstate commerce."^37
The expansive interpretation of^ the^ commerce^ power^ started^ by
Jones &^ Laughlin^ Steel^ reached^ its^ peak^ in^ Wickard^ v.^ Filburn.
38
- National Labor Relations Board v. Jones & Laughlin^ Steel Corp.,^301 U.S.^ 1,^37 (1937) (Court upheld the constitutionality of the National Labor Relations Act of^1935 which^ granted employees the^ right^ to^ form^ unions,^ imposed^ duties^ to^ engage^ in collective^ bargaining,^ and created the National Labor Relations Board, with power to^ act^ against^ unfair^ labor^ practices affecting commerce).
- See, e.g., United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895); Carter^ v.^ Carter^ Coal Co., 298 U.S. 238, 303-04 (1936).
- Jones & Laughlin Steel, 301 U.S. at 36-37.
- 312 U.S. 100 (1941) (Court upheld the Fair Labor Standards Act prohibiting interstate shipment of^ goods^ if^ minimum^ wage^ and maximum^ hour^ standards^ were^ violated respecting anyone employed in their production).
- Hammer v. Dagenhart, 247 U.S. 251 (1918), overruled by^ United^ States^ v.^ Darby,^312 U.S. 100 (1941). 36. Darby, 312 U.S. at 115-16. 37. Id. at 118. 38. 317 U.S. 111 (1942). The Court in Lopez^ described^ Wickard^ as^ perhaps the^ most^ far- reaching example of Commerce Clause^ authority^ over^ intrastate^ activity.^ United^ States^ v.^ Lopez, 115 S.Ct. 1624, 1630 (1995). In Wickard, Filburn owned a small farm on which he^ raised^ cattle
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commerce; 44 and (3) regulate activities affecting commerce.'a^ This
was the status of modem commerce jurisprudence when the Court
decided to hear Lopez.
Another limit on Congress's commerce power comes not from
judicial interpretation of the Commerce Clause itself, but from the
Tenth Amendment, discussed in Section II.
II. FEDERALISM AND TENTH AMENDMENT
LIMITATIONS ON COMMERCE POWER
Despite the ever-expanding view of congressional power under
the Commerce Clause, the Court has nevertheless continued to
adhere to the notion that the commerce power is limited.^46 In some
sixty years of modem Commerce Clause jurisprudence, however, the
Court has identified few boundaries on the commerce power. One
particular issue with which the Court has struggled is whether state
sovereignty imposes a limitation on the commerce powers of
Congress.
In balancing congressional power under the Commerce Clause
against states' rights under the Reservation of Powers Clause of the
Tenth Amendment, the Court has traditionally found that a lawful
exercise of the commerce power does not infringe on state sovereign-
ty. 7 In Maryland v. Wirtz, the Court upheld the application of the
Fair Labor Standards Act to state-operated schools and hospitals. 48
The Court found that where a state was acting in a manner that
resembled other employers, it would be subject to federal regulations
to the same degree as other employers.^49 If the general regulations
were within the commerce power, it made no difference whether a
- See Heart of Atlanta Motel, 379 U.S. 241.
- See, e.g., Perez v. United States, 402 U.S. 146, 150 (1971). 46. See, e.g., United States v. Lopez, 115 S.Ct. 1625,1628 (1995); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (noting that the commerce power must be viewed in light of our dual system of government).
- See, eg., Maryland v. Wirtz, 392 U.S. 183,196-97 (1968), overruledby National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 48. Wirtz, 392 U.S. at 201 (the particular issue in Wirtz was the applicability of federal minimum wage and maximum hour regulations in the Fair Labor Standards Act to employees of state-operated schools and hospitals).
- Ild. at 193-94. The Court also noted that the federal statute would apply even to what might be considered core governmental functions as well as proprietary activities. Id. at 196-97.
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state was among the^ regulated^ entities.^5 "^ Thus,^ the^ application of^ the
Fair Labor Standards Act^ to the^ states^ did^ not^ infringe^ on^ state
sovereignty protected by the Tenth Amendment. 1
Some years later, in National League of Cities v. Usery 2 the
Court held that the^ Commerce^ Clause did^ not^ give^ Congress^ power
to regulate "the States as States."^53 The Court found that the Tenth
Amendment acted as a^ substantive^ limit^ on^ the^ commerce^ power.^54
The Court recognized an express^ declaration^ of^ limitation from^ the
language of the Tenth Amendment itself:^ "The^ [Tenth]^ Amendment
expressly declares the constitutional policy that^ Congress^ may^ not
exercise power in a fashion that impairs the States' integrity or their
ability to function effectively in a federal system."^55 Thus, the Court
concluded that Congress exceeded its Commerce Clause authority
because the challenged regulations operated directly to displace the
states' freedom to structure integral operations in areas of traditional
governmental functions.
50. Id. at 196-97. 51. Id. at 198-99. In^ a^ subsequent^ case,^ Fry^ v.^ United^ States,^^421 U.S.^ 542 (1925),^ although upholding the exercise of congressional commerce authority, the Court signaled^ a^ retreat^ by positing that state governments might be less subject^ to^ federal regulation^ than^ other^ entities. Id. at 548. In his dissent to Fry, Justice Rehnquist voiced concerns that the regulations in question violated affirmative limits on the ability of Congress to regulate^ traditional governmental activities of the states. ld. at 557-59 (Rehnquist, J.,^ dissenting).^ The^ tenor^ of^ this dissent was adopted the following term as the majority opinion in National League of Cities v. Usery, 426 U.S. 833 (1976).
- 426 U.S. 833 (1976), overruledby^ Garcia^ v.^ San^ Antonio^ Metro.^ Transit^ Auth.,^469 U.S. 528 (1985). 53. National League of Cities, 426 U.S. at 842. At issue in National League of Cities^ was whether the Fair Labor Standards Act applied to state and local governments. By a sharply divided vote, the Court ruled that the Commerce Clause does not empower Congress to enforce the minimum wage and overtime^ provisions^ of^ the Act^ against^ the^ States^ "in areas^ of^ traditional governmental functions." Id. at 852.
- Id.^ at^ 842.^ The^ Court^ reasoned^ that^ the^ very^ structure^ of^ the^ federal^ system^ of government imposes definite limits upon the authority of Congress to regulate the activities of the States as States through the exercise of the commerce power. Id. In attempting to ascertain the scope^ of^ such^ limits,^ the^ Court^ drew an^ analogy^ between^ individual rights^ granted^ by^ the Constitution and States' rights. That is, even a federal statute^ passed^ under^ the^ commerce authority would be invalid if it^ violated some^ individual^ right^ such as^ the^ right to^ a fair^ trial^ or to due process. Likewise, a federal statute passed under the commerce authority could not displace the States' freedom to structure integral operations in areas of traditional governmental functions. Id. at 852.
- Id. at 843 (quoting Fry, 421 U.S. at 547).
- National League of Cities, 426 U.S. at 852. Although National League of Cities listed several examples of "traditional government functions" such as fire prevention, police protection and public health, it did not identify guidelines by which lower courts could distinguish between a traditional and nontraditional function when considering the issue of^ state^ immunity^ under^ the
UNITED STATES V. LOPEZ
United States v. New York did not rest on Tenth Amendment grounds,
the Court discussed the scope of the Tenth Amendment in relation to
congressional power. The Court reiterated that the text of the Tenth
Amendment does not directly limit the authority of Congress, 6 ' but
it restrains congressional power by requiring the Court to determine
"whether an incident of state sovereignty is protected by a limitation
on an Article I power." 62 Recently, in Seminole Tribe of Fla. v.
Florida, the Court again considered traditional principles of federalism
in holding that the commerce power cannot be used to abrogate a
state's sovereign immunity from suit by private persons. 63 Although
Seminole Tribe arose from a challenge to the Indian Gaming
Regulatory Act, the Court indicated that its reasoning would apply to
a broad range of cases. In particular, the Court specifically overruled
a previous decision that held that the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 authorized a
61. Id. at 2418. 62. Id. ("[T]he Tenth Amendment confirms that the power (^) of the Federal Government is subject to limits that may, in a given instance, reserve power to the States."). 63. 116 S.Ct. 1114 (1996).
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private action against a state for monetary damages.' This was the
state of the law when the Court^ decided^ to hear^ Lopez.
III. UNITED STATES^ V.^ LOPEZ^5
The issue before the Court in Lopez concerned^ the^ authority^ of
Congress to^ regulate^ citizens,^ rather^ than^ a^ state,^ and^ thus^ did^ not
raise the^ notion^ of^ federalism^ in^ the^ traditional^ sense.
66 Nonetheless,
the Court considered^ principles^ of^ state^ sovereignty^ and^ essentially
concluded that^ the^ Gun-Free^ School^ Zones^ Act^ was^ an^ impermissible
64. See Pennsylvania,v.^ Union^ Gas^ Co.,^491 U.S.^^1 (1989).^ For^ some^ fifty^ years,^ the predecessor of Union Gas had operated a coal gasification plant^ which^ produced^ coal^ tar^ as^ a by-product. The plant^ was^ dismantled in^ 1950.^ In^ 1980,^ shortly^ after^ acquiring^ easements^ in^ the property along^ the^ creek adjacent^ to the^ former^ plant^ and^ while^ excavating^ for^ flood^ control, the state struck a^ large^ deposit of^ coal-tar^ which^ began^ to^ seep^ into^ the^ creek.^ EPA^ determined that the^ coal^ tar^ was^ a^ hazardous^ substance^ and designated^ the^ area^ a^ Superfund^ site. The United States jointly cleaned up the site with^ the^ state^ and^ reimbursed^ the^ state^ for its costs. The United^ States then^ sought^ to^ recoup these^ costs^ from^ Union^ Gas^ under^ CERCLA §§ 104 and 106, 142 U.S.C.^ §§^ 9406, 9606^ (1994),^ claiming^ Union^ Gas^ was^ liable^ because^ it^ and its predecessor had deposited the coal tar into^ the^ ground^ near^ the^ creek.^ Union^ Gas^ brought a third-party action against^ the^ state,^ asserting^ that^ the^ state^ was also^ responsible^ as^ an^ "owner or operator"^ of^ the^ site^ under^ CERCLA^ §^ 107,^142 U.S.C.^ §^ 9607 (1994).^ The^ appellate^ court's initial decision affirming the district court's dismissal^ of^ the^ action^ based^ on^ Eleventh Amendment immunity was vacated and the case remanded for^ reconsideration^ in^ light^ of the Superfund Amendments^ and^ Reauthorization^ Act^ of^ 1986,^ passed^ while^ the^ petition^ for certiorari was pending. On remand, the appellate court^ held^ that^ the^ amended^ language^ of CERCLA clearly^ rendered the^ states^ liable for^ monetary^ damages^ and^ that^ Congress^ had^ the power to do so when legislating^ pursuant^ to the^ Commerce^ Clause. The Court, by a weak majority, affirmed, finding that^ because^ states^ were included^ in^ the definition of persons, and excluded from the^ definition^ of^ owner^ or^ operator^ only^ in^ certain limited circumstances, Congress intended states^ to^ be^ liable^ for^ clean^ up^ costs^ under^ CERCLA § 107. The Court further found that Congress had the authority^ to^ override^ the^ states' immunity when legislating pursuant to its commerce power because that^ power^ is^ plenary.^ By^ ratifying^ the Constitution containing^ the^ Commerce^ Clause,^ the^ states^ thereby^ relinquished^ their^ immunity and consented to^ suits^ against^ them^ where^ Congress^ finds^ it^ necessary,^ in^ the^ exercise^ of^ the commerce authority, to render the states^ liable. The Court^ therefore^ held^ that^ Congress^ had the^ authority^ to^ abrogate^ the^ states' sovereign immunity and had done^ so^ in^ CERCLA. 65. 115 S.Ct. 1624 (1995).
66. See Mcjohn, supra note 10, at 24 (arguing that^ the^ Lopez^ court^ left no^ doubt^ that^ the
question of^ traditionally state-regulated^ activity^ was^ now^ part^ of determining^ the^ extent^ of
federal commerce^ power and^ predicting^ that^ the^ principal^ doctrinal^ effect^ of^ Lopez^ will^ be^ that
state sovereignty concerns^ will^ move from^ a^ background^ policy^ concern^ in^ Commerce^ Clause
analysis to an explicit part of the^ test). The^ Court^ framed^ the^ main^ issue^ in^ Lopez^ as^ whether
firearm possession in a school zone substantially^ affects^ interstate^ commerce,^ but^ its^ actual
analysis was rooted in concerns for protecting^ state^ autonomy in areas traditionally^ left^ to state
control. Thus, it is important to understand the^ prevailing^ principles^ of^ federalism^ to^ fully
comprehend the import^ of^ Lopez.
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connection between gun possession in a school zone and interstate
commerce, the Fifth Circuit reversed the conviction, holding that
§ 922(q) was an unconstitutional extension of the powers granted to
Congress under the Commerce Clause. 76 In a five-to-four decision,
the United States Supreme Court affirmed, finding that the Act
neither regulates a commercial activity nor contains a requirement
that the possession be connected in any way to interstate com-
merce.
77
B. Majority Opinion of the United States Supreme Court
The Gun-Free School Zones Act of 1990 made it a federal
offense "for any individual knowingly to possess a firearm at a place
that the individual knows, or has reasonable cause to believe, is a
school zone."'78^ The majority held that in enacting this statute,
Congress exceeded its authority to regulate commerce among the
several states.^
Writing for the majority, Chief Justice Rehnquist began with
"first principles": the Constitution creates a federal government with
enumerated powers, few and defined, while the powers remaining
with the states are numerous and indefinite.^80 The Court engaged
in a lengthy review of the historical structure of Commerce Clause
jurisprudence and ultimately identified three broad categories of
activity that can be regulated by Congress under its commerce power.
First, Congress may regulate use of the channels of interstate
commerce.^81 Second, Congress may regulate instrumentalities of
interstate commerce and people or things that move in interstate
commerce, even where the threat to interstate commerce may come
solely from intrastate activities.' Finally, Congress may regulate
those activities that substantially affect interstate commerce.^83
In this last category, decisions over the years had been unclear as
to whether an "effect" or a "substantial effect" on interstate com-
- Id. at 1367-68.
- Lopez,'115 S.Ct. at 1634. 78. 18 U.S.C. § 922(q)(1)(A) (Supp IV 1992).
- Lopez, 115 S.Ct. at 1626.
- Id. (quoting The Federalist No. 45, at 292-293 (James Madison) (C. Rossiter, ed. 1961)).
81. ld. at 1629.
82. Id. 83. Id. at 1629-30.
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UNITED STATES^ V. LOPEZ
merce was required.' The majority acknowledged this past inconsis-
tency and summarily pronounced that the proper test was whether the
regulated activity "substantially affects" interstate commerce.^85
Applying this framework to the case at hand, the Court deter-
mined that only the third category had any potential application to
the Gun-Free School^ Zones^ Act^ of^ 1990.86^ The^ issue^ as^ framed^ by
the Court, therefore, was^ whether^ the^ Gun-Free^ School^ Zones Act
regulated an activity that substantially affected commerce. In
determining this issue, the Court departed from the rational-basis
scrutiny traditionally employed in Commerce Clause cases. Prior to
Lopez, the Court had generally deferred to^ congressional^ determina-
tion that the interstate commerce nexus existed.' Congressional
action had previously been scrutinized only to the extent of determin-
ing whether Congress could rationally have concluded that a regulated
activity sufficiently^ affected^ interstate^ commerce.^88 Although^ the
Lopez majority cited several^ cases^ in^ which^ the^ Court^ applied^ this
low-level scrutiny, deference^ was^ not^ granted^ in^ this^ case.^ Instead,^ the
Court engaged in its own^ evaluation^ of^ the^ effects^ gun^ possession^ in
a school zone had^ on^ interstate^ commerce.^89
Conducting an independent analysis,^ the^ majority found^ the^ Act
deficient in three regards. First, the^ Court found^ that^ "[s]ection
922(q) is a criminal statute that by its terms has nothing to do with
'commerce' or any sort of economic enterprise, however broadly one
might define those terms."^9 The Act also could not be sustained
under the^ Wickard^ line^ of^ reasoning^ because^ Section^ 922(q)^ was^ not
an essential part^ of^ a^ larger^ economic^ regulatory^ scheme^ that^ could^ be
- Id. at 1630.
- Id. 86. Id. (Court summarily dismissed the applicability of the first two categories, finding that 18 U.S.C. § 922(q) (Supp. IV 1992) did not regulate "the use of the channels of interstate, commerce" nor^ seek^ to^ protect^ "a^ thing^ in^ interstate^ commerce.").
- See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964).
- Lopez, 115 S.Ct. at 1629. See also, e.g., Virginia Surface Mining & Reclamation Ass'n, 452 U.S. at 276-80; Perez v. United States, 402 U.S. 146, 155-56 (1971); Heart of Atlanta Motel, 379 U.S. at 252-253.
- Lopez, 115 S.Ct. at 1631-32. See also, Mcjohn, supra note 10, at 27-28 (suggesting Court has abandoned its previous deference to Congress in favor of its own independent assessment of the effect on commerce); Adam D. Hirsh, United States v. Lopez: A Commerce Clause Challenge, 32 IDAHO L. REV. 505, 510-511 (1996) (theorizing that from now on the Court will be less deferential and continue to engage in an independent review of congressional action).
- Lopez, 115 S.Ct. at 1630-31.
Spring 1997]
UNITED STATES V. LOPEZ
productive citizenry, and ultimately adversely affecting the economic
health of the nation. 98
The Court rejected these arguments, not because they failed to
establish a connection to interstate commerce, but because accepting
such arguments would have far-reaching implications to state
sovereignty. That is, if it accepted the "costs of crime" reasoning,
Congress would be empowered to regulate not only all violent crime,
but also any activity that might eventually^ lead to^ violent^ crime,^ even
where the connection to interstate commerce^ was^ quite^ thin.^99
Similarly, by accepting the "national productivity" rationale, the Court
would be authorizing Congress to regulate every aspect of human
activity that might influence the* productivity of any individual
citizen.1°^ The majority expressed reluctance to expand the scope
of federal commerce authority in the manner suggested by the
government because Congress might thereby be authorized to regulate
in areas traditionally left to state control.'
Essentially, the majority rejected these arguments because of the
perceived need to find some outer limit to congressional commerce
power. The Court stated: "Under the theories that the Government
.presents ... it is difficult to perceive any limitation on federal power,
even in areas ... where States historically have been sovereign.""
The Court reasoned^ that^ if^ it^ accepted^ the^ government's^ arguments,
it would be hard-pressed to posit any activity by an individual that"
Congress is without power to regulate. 3 The Court therefore
declined to extend the commerce power^ inthe^ manner^ posited^ by^ the
government because to do otherwise would essentially convert the
power into a general police power of the sort retained only by the
states.' 4
While Lopez purports to be decided solely on the basis of the
Commerce Clause, the Court's determination that Congress exceeded
its authority under the Commerce Clause seems^ to^ be^ directed^ more
by a concern for state sovereignty than because the Act lacked the
98. Id.
- Id. 100. Id. The "national productivity" rationale could conceivably be extended to open to federal control areas^ such^ as^ marriage,^ divorce,^ and^ child^ custody.^ Id.
- Id. The areas the Court noted were traditionally in the state domain included criminal law enforcement, education, and family relationships. Id.
- Id.
- Id. '104. Id. at 1634.
Spring 1997)
DUKE ENVIRONMENTAL (^) LAW & POLICY FORUM
necessary nexus to interstate commerce.0 5^ The implication of
Lopez is that the commerce power may now be limited by the
reservation of power to the states under the Tenth Amendment such
that an exercise of congressional power over an activity that affects
interstate commerce can nevertheless be found to be unconstitutional
if that federal regulation infringes on state sovereignty. By analyzing
the commerce authority in this fashion, the Court intejected the issue
of federalism into traditional Commerce Clause doctrine, potentially
imposing a new limitation on the commerce power and thereby
narrowing the^ reach^ of^ the^ Commerce^ Clause.
IV. POTENTIAL LOPEZ CHALLENGES TO ENVIRONMENTAL LAWS
Because the Commerce Clause has long served as the principal
source of congressional authority to enact federal environmental
protection laws, the Court's resolution of Lopez may call into
question the scope and possibly the .validity of existing federal
environmental laws." 7 While it is true that some environmental
laws have been based on authority arising from other Constitutional
clauses, such as the Property Clause, 103 most of the environmental
- See id. at 1634 (expressing concern for maintaining the "distinction between what is truly national and what is truly local"). Lopez has been credited with being "a necessary first step in the revitalization of federalism .... Frantz, supra note 10, at 174.
- See Mcjohn, supra note 10, at 30 (arguing Lopez combines previously separate doctrines of commerce power (^) analysis and Tenth Amendment analysis to increase scrutiny of federal regulation in areas of traditional state concern).
- Recently, the Southern District of Alabama rejected a proposed consent decree and dismissed a CERCLA complaint brought by the United States against the owner of a manufacturing operation that had shut down in 1982. The court held that the Commerce Clause did not authorize federal regulation of post-CERCLA contamination. The court interpreted Lopez to require:
- that the statute itself regulate economic activity, which activity substantially affects interstate commerce; and 2) that the statute include a jurisdictional element which would ensure, through case-by (^) case inquiry, that the statute in question affects interstate commerce.
United States v. Olin Corp., 927 F. Supp. 1502, 1532 (S.D. Ala. 1996) (appeal pending). The court found it "doubtful" that CERCLA regulated an "economic activity" as that term is used in Lopez, because the statute was aimed at non-functioning facilities. See Id. The court also observed that the law regulating real property is a matter of traditional state concern and noted the lack of a jurisdictional element in the statute. See Id. The government filed a motion for expedited consideration of its appeal citing the impact of the ruling on other CERCLA cases. See Recent Developments, 32 CIEM. WASTE LIT. R. 516 (1996).
- See, e.g., Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
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