Backpedaling

Last week was anti-environment week in Washington. The House of Representatives passed a bill that effectively guts the Endangered Species Act (ESA)-arguably our nation's most powerful piece of environmental legislation. At the same time, the Supreme Court agreed to hear three cases challenging the federal government's constitutional authority to protect the environment. These actions directly threaten our nation's clean water, clean air and diverse ecosystems.

President Nixon signed ESA in 1973 with overwhelming support. The Act allows the government to protect critical habitat for endangered species to ensure their survival. It is the reason we still have the bald eagle, grizzly bears and yes, the infamous Northern Spotted Owl.

Last week's House vote replaces the protected habitat decree with vague "recovery plans" that solidly favor property rights over environmental integrity. For those who view private property rights as sacrosanct (the Hamiltonian view), even at the expense of the public good (championed by Jefferson), how would you feel if the government could not regulate a local power plant's noxious emissions because it was privately owned?

Also last week, the Supreme Court agreed to hear three constitutional challenges to the Clean Water Act (CWA), another powerful piece of environmental legislation from the Nixon era that would leave us screwed should it be thrown out. Remember that the Act passed in the first place because people were fed up with drinking water laced with carcinogenic industrial wastes and rivers so polluted they caught fire. One of these cases involves John Rapanos, a Michigan developer, who was rightfully convicted under CWA for filling in his wetlands to prepare for a new housing development. Having lost the argument that CWA does not apply to his land, Rapanos will now challenge the constitutionality of CWA itself before the high court. By arguing that the Constitution's Commerce Clause is not applicable to lands wholly contained within a single state, the fate of one of the federal government's most powerful Constitutional tools is being tested.

The Commerce Clause is one of the most important and effective parts of the Constitution when it comes to the power of the federal government. Basically, it gives Congress the authority to pass national laws where the relevant issue crosses state boundaries. Without it, CWA, ESA, the Clean Air Act, the Civil Rights Act, the Fair Labor Standards Act, Gun-Free Schools Act, federal food safety standards and sexual discrimination prohibitions, among hundreds of other pieces of national social, environmental and civil rights legislation, would likely be struck down as unconstitutional federal overreach.

So what? Well, it is very possible that Chief Justice Roberts will lead a majority ruling that the federal government has no right to protect Rapanos' wetlands because they do not cross state lines. This would be an exceedingly strict view of the Commerce Clause. Most other judges have accepted the precedent that isolated wetlands have hugely positive impacts on their surrounding watersheds, and therefore on water quality broadcast over an infinite area-including across state lines. If the majority rules the strict way, then most of our nation's waterways will no longer be subject to any CWA rules.

Unfortunately, Roberts' brief judicial history favors a strict interpretation of the Commerce Clause. As an appellate judge, he argued in 2003 that the federal government had no constitutional authority to protect the habitat of a rare, "hapless toad" under ESA because it lives only in California. This goes against three decades of jurisprudence in which the courts ruled that species themselves are commodities-hence the application of the Commerce Clause. Thus, if one species becomes extinct, the aggregate economic value of all species declines, which applies to interstate commerce.

The greater point is that if a strict interpretation prevails in the wetlands case, that would easily apply to future rulings on ESA, clean air legislation and right on down the line of federal environmental protections.