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The Migratory Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation

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The Migratory Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation William & Mary Law Review Volume 39 (1997-1998) Issue 5 Article 5 May 1998 The Migratory Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation Peter A. Gilbert Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Environmental Law Commons Repository Citation Peter A. Gilbert, The Migratory Bird Rule After Lopez: Questioning the Value of State Sovereignty in the Context of Wetland Regulation, 39 Wm. & Mary L. Rev. 1695 (1998), https://scholarship.law.wm.edu/wmlr/vol39/iss5/5 Copyright c 1998 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr NOTES THE MIGRATORY BIRD RULE AFTER LOPEZ: QUESTIONING THE VALUE OF STATE SOVEREIGNTY IN THE CONTEXT OF WETLAND REGULATION Before a land owner may lawfully undertake development that could result in wetland destruction, even if the affected wetland is wholly within the limits of his estate, he must first obtain a per- mit from the Army Corps of Engineers.' This federally operated permit program is a product of section 404 of the Clean Water Act.2 The Clean Water Act authorizes federal jurisdiction over all "navigable waters."' By defining navigable waters broadly, Con- gress contemplated federal jurisdiction over wetlands to operate to the full extent of the Commerce Clause.4 In crafting regula- tions for the enforcement of section 404, the EPA adopted what is known as the "migratory bird rule" (MBR). The MBR extends the Army Corps's section 404 jurisdiction to wetlands "whose use by and value to migratory birds is well established."5 This Note explores the constitutional validity6 of the MBR as 1. See Federal Water Pollution Control Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended by the Clean Water Act, Pub. L. No. 95-217, 91 Stat. 1566 (1977), at 33 U.S.C. §§ 1251-1387 (1988 & Supp. V 1993)). 2. See id. 3. See Sam Kalen, Commerce To Conservation: The Call For a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N.D. L. REV. 873, 887 (1993); Richard G. Kozlowki & Howard Bleichfeld, Wetlands Enforcement: Lion or Lamb?, RESOURCES & ENV'T, Winter 1996, at 62, 63. 4. See Kalen, supra note 3, at 898 (asserting that the 1977 congressional amend- ments make evident that Congress accepted the Corps's regulations, which defined jurisdiction to the extent of the Commerce Clause). 5. 51 Fed. Reg. 41,206, 41,217 (1986); see J. Blanding Holman, IV, Note, After United States v. Lopez: Can The Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139, 167 (citing EPA memo- randum from Francis S. Blake, General Counsel, to Richard E. Samderson, Acting Assistant Administrator, Office of External Affairs (Sept. 12, 1985)). 6. In determining "constitutional validity," this Note asks whether a reviewing court ought to uphold the MBR as an act of commerce power. 1695 1696 WILLIAM AND MARY LAW REVIEW [Vol. 39:1695 one method to determine whether a wetland comes under feder- al commerce power jurisdiction. Commerce power jurisdiction is a prerequisite to federal regulation of any isolated wetland pur- suant to section 404 of the Clean Water Act.7 In the wake of the United States v. Lopez' decision, which explicitly recognized a limit to federal commerce power, many scholars examined con- gressional extensions of commerce power with renewed inter- est.9 In Leslie Salt v. United States'0 a landowner challenged the MBR's extension of congressional commerce power. By the time the challenger petitioned for certiorari, the United States Supreme Court already had issued the Lopez decision. The Court denied certiorari, but Justice Thomas dissented, question- ing the MBR's validity in view of the Lopez decision." Several authors have shared his concern.12 7. See Kalen, supra note 3, at 896 (explaining the Army Corps's regulations in- terpreting jurisdiction over isolated wetlands and water bodies, intermittent streams, and other waters not connected to interstate or navigable waters); John A. Leman, Comment, The Birds: Regulation of Isolated Wetlands and The Limits of the Com- merce Clause, 28 U.C. DAVIS L. REV. 1237, 1255 (1995) (noting that "[glenerally, fed- eral courts of appeal have found that Congress intended the Clean Water Act to extend to the limits of the Commerce Clause"). 8. 514 U.S. 549 (1995). 9. See Mark A. Chertok, Federal Regulation of Wetlands, in ENVIRONMENTAL LITI- GATION, 1133, 1137 (ALI-ABA Course of Study, June 24, 1996) available in Westlaw SA85/3 ALI-ABA 1133; Stephen M. Johnson, United States v. Lopez: A Misstep, But Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENvTL. L.J. 33 (1996); Stephen M. McJohn, The Impact of the United States v. Lopez: The New Hybrid Commerce Clause, 34 DUQ. L. REV. 1 (1995); Edward Alburo Morrissey, The Jurisdiction of the Clean Water Act Over Isolated Wetlands: The Migratory Bird Rule, 22 J. LEGIS. 137, 141-44 (1996); Michael Bablo, Note, Leslie Salt Co. v. United States: Does the Recent Supreme Court Decision in United States v. Lopez Dictate the Abrogation of the 'Migratory Bird Rule"?, 14 TEMP. ENVTL. L. & TECH. J. 277 (1995); Eric Grossman, Comment, Where Do We Go From Here? The Aftermath and Application of United States v. Lopez, 33 HOUS. L. REV. 795 (1996); Jonathan G. Hieneman, Note & Comment, The Shrinking Reach of the Commerce Power: Is Wetland Jurisdiction in Danger?, 10 J. NAT. RESOURCES & ENvTL. L. 341, 353-56 (1995); Holman, supra note 5; Leman, supra note 7, at 1253-67 (noting that the Fifth Circuit's holding in Lopez, 2 F.3d 1342 (5th Cir. 1993), represents a limitation of commerce power potentially relevant to the Clean Water Act). 10. 55 F.3d 1388 (9th Cir. 1995), cert. denied sub nom. Cargill v. United States, 516 U.S. 955 (1995). 11. See Cargill, 516 U.S. at 955 (Thomas, J., dissenting). Due to the procedural complexity of the Leslie Salt line of cases, arguably, the Supreme Court denied cer- tiorari based on issues other than the merits. See infra notes 61-96 and accompany- ing text. 12. See, e.g., Morrissey, supra note 9, at 141-43; Bablo, supra note 9, at 289-92; 19981 MIGRATORY BIRD RULE AFTER LOPEZ 1697 This Note concludes that the MBR survives the Lopez test and that the denial of certiorari to Leslie Salt can be reconciled with the Lopez decision. Other notes and articles have scrutinized the strength of the MBR's interstate commerce nexus. 3 A careful reading of Lopez, however, suggests that its application to the MBR should focus not exclusively on the strength of the inter- state commerce nexus, an essentially formalistic test,'4 but also on the broad implications to the federal-state balance in sustain- ing the rule as constitutional expression of commerce power-a functionalist or pragmatic test. The Lopez test introduces a nov- el, albeit intuitive, criterion for assessing the constitutionality of federal regulation based on the commerce power. By scrutinizing the impact of a federal regulation on the constitutionally con- templated federal-state balance, Lopez invites a broad inquiry into the relative merits of permitting federal regulation in favor of state regulation in a given arena. In effect, this permits the obvious and welcome inquiry into whether federal regulation in a particular area is more or less consistent with the organizing principles behind the structure of the government. Because the Framers deliberately designed the federal-state balance with a specific purpose in mind, it seems fair to assert that the Framers' federal-state sovereignty distinction warrants exten- Hohnan, supra note 5, at 198-99; Leman, supra note 7, at 1259-61. 13. See Morrissey, supra note 9, at 141-43; Bablo, supra note 9, at 289-92; Holman, supra, note 5, at 198-99; Leman, supra note 7, at 1259-61. These inquiries focused on whether the activity in question, i.e., destroying a wetland that is a habi- tat to migratory birds, substantially affects interstate commerce. 14. For a history of Commerce Clause jurisprudence, see United States v. Lopez, 514 U.S. 549, 551-60 (reciting the history of the Commerce Clause); Grossman, supra note 9, at 815-32; Robert Wax, Comment, United States v. Lopez: The Continued Ambiguity of Commerce Clause Jurisprudence, 69 TEMP. L. REV. 275, 277-84 (1996). The interstate commerce nexus is, or was, a formalistic test inquiring whether a reg- ulated activity substantially affects interstate commerce. See Lopez, 514 U.S. at 559 (citing Maryland v. Wirtz, 392 U.S. 183, 196 n.27 (1968)); see also Alan R. Arkin, Comment, Inconsistencies in Modern Federalism Jurisprudence,70 TUL. L. REV. 1569, 1579 (1996) (noting the acceptance of the "substantial economic effect" approach to commerce power jurisdiction after NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) and Wickard u. Filburn, 317 U.S. 111 (1942)). Over time the test, while maintaining formalistic language, became more open ended, departing from the for- malistic test and becoming effectively all-inclusive. See Arkin, supra, at 1582 (noting that the Commerce Clause has "been expanded into an amorphous legislative tool with few limits"). 1698 WILLIAM AND MARY LAW REVIEW [Vol. 39:1695 sion only insofar as it furthers their contemplated purpose. A broad inquiry into the MBR in the context of the Framers' contemplated federal-state balance produces two conclusions. First, the federal rather than state government is better situat- ed to protect the economic interests in the nation's wetlands.
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