The Clean Water Restoration Act (CWRA), legislation designed to strengthen the water protections established by the Clean Water Act (CWA), is under attack. CWRA seeks to bolster the CWA by extending the protections to include all “waters of the United States.” But private property rights advocates and other interest groups that oppose federal environmental laws are trying to derail the legislation by arguing that it’s unconstitutional.
The heart of the debate over CWRA is whether it exceeds the scope of Congress’s legislative authority under Article I, Section 8, the portion of the Constitution that lists Congress’s powers.
In a recent American Bar Association publication, OELC director Trent Dougherty squares off against Reed Hopper, an attorney for the conservative Pacific Legal Foundation. Dougherty defends the constitutionality of CWRA pursuant to Congress’s Commerce Power, writing that “Congress has broad and ample authority to regulate [waters] and with the passage of CWRA, does so to the full extent of the Constitution.” In a companion article, Hopper takes the opposing view, arguing that the Supreme Court’s interpretation of Congress’s Commerce Power would preclude CWRA’s expansive definition of “waters of the United States.” Hopper argues that “commerce” cannot include the type of pollution controls established by the law.
The debate over CWRA represents the larger debate over the power of the federal government to enact laws designed to protect the environment. Conservatives such as Reed Hopper take a very narrow view of Congressional power, essentially arguing that Congress only has those powers that are expressly delegated to it by the Constitution.
But the Supreme Court has consistently held that Congress has broad authority to regulate the “channels” and instrumentalities of interstate commerce, as well as those activities which “substantially affect” interstate commerce. See Wickard v. Filburn and U.S. v. Lopez. Further, as Dougherty points out, Congress may use not only its “Commerce Clause authority [but also] its treaty powers, and its power over federal lands” to regulate water pollution.
The debate over the extent of Congress’s legislative power will be an important one to watch over the coming years. If advocates such as Hopper prevail and persuade the Supreme Court to accept a narrow reading of Congress’s power to protect the environment, it could stifle attempts to protect the nation’s air, land, and water.
CWRA is supported by the OELC, President Obama, and EPA Administrator Lisa Jackson. The legislation is currently awaiting a vote in the Senate Environmental and Public Works Committee.
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