Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetland Regulation

Abstract

Since the 1970s the federal government has been involved in the regulation of wetlands under Section 404 of the Clean Water Act. Like most federal environmental programs, authority for this regulation is premised upon an expansive reading of the Commerce Clause. In 1995, however, the Supreme Court suggested that Congress' Commerce Clause power is limited, raising questions about the constitutional limits of federal environmental regulation. This article analyzes the Commerce Clause doctrines explicit and implicit in United States v. Lopez and the extent to which this decision should limit federal wetlands regulation. The article continues to question whether judicially enforced limits on federal regulatory authority will compromise wetland conservation efforts. Based upon a review of the theoretical literature and empirical evidence, the article concludes that limiting the federal government's ability to regulate wetlands need not undermine conservation efforts, and there is substantial reason to believe that reimposing constitutional limits on federal regulatory authority may well improve environmental protection efforts.

Note: This is a description of the paper and is not the actual abstract.