ACSBlog: The Blog of the American Constitution Society

ACS released an issue brief entitled "Anchoring the Clean Water Act: Congress' Constitutional Source of Power to Protect the Nation's Waters," by Jay Austin and D. Bruce Myers, Jr., senior attorneys at the Environmental Law Institute. Austin and Myers identify the constitutional powers Congress can draw upon to protect waters nationwide, including identifying and explaining the effect of several U.S. Supreme Court rulings.

Austin and Myers conclude:

Relevant history and precedent demonstrate that Congress’s authority to assert federal jurisdiction through the exercise of the commerce power alone is far-reaching, particularly in light of Congress’s ability to regulate even purely intrastate activities as part of a comprehensive legislative scheme. And should Congress assert jurisdiction over the Nation’s waters based on all of its relevant powers, collectively, there is little doubt that Congress would again be calling on the Corps of Engineers and EPA to regulate pollution and protect habitat across the vast majority of aquatic ecosytems nationwide.

As a practical matter, this outcome would have the effect of restoring federal protection to the same categories of waters that were commonly understood to be subject to federal jurisdiction during the three decades prior to the Supreme Court’s SWANCC ruling. Such a result would be both consistent with the Clean Water Act’s long, successful history and, as this Issue Brief demonstrates, defensible as a matter of constitutional law.

The full text of the issue brief is available here.