SWANCC: Constitutional Swan Song for Environmental Laws or No More than a Swipe at Their Sweep?

Environmental Law Reporter, Vol. 31, p. 11493, December 2001

6 Pages Posted: 7 Mar 2009

See all articles by Charles Tiefer

Charles Tiefer

University of Baltimore - School of Law

Date Written: December 2001

Abstract

In this analysis of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corp of Engineers ("SWANCC)", the author reassures environmentalists that Chief Justice Rehnquist's opinion is not the serious strike at the Endangered Species Act that they fear. Although the opinion appears to put the constitutionality of certain environmental regulations at odds with the Commerce Clause, the author reframes the opinion in an optimistic, and hopefully realistic view. The stances taken by Justices O'Conner and Kennedy and their focus on the statutory, rather than constitutional, nature of SWANCC, suggests that the SWANCC decision does not call into question the constitutional validity of the Endangered Species Act. Instead, the author argues, the decision reflects the existence of Justices who, because they have a greater appreciation of the government's role in environmental law, have the ability to protect environmental laws from attack.

Keywords: SWANCC, Rehnquist, O'Conner, Environmental Species Act, CERCLA, statutory interpretation, Commerce Clause, "migratory bird rule", wetlands, environmental law, commercial, wetlands, United States v. Lopez,

JEL Classification: K32, K49

Suggested Citation

Tiefer, Charles, SWANCC: Constitutional Swan Song for Environmental Laws or No More than a Swipe at Their Sweep? (December 2001). Environmental Law Reporter, Vol. 31, p. 11493, December 2001, Available at SSRN: https://ssrn.com/abstract=1354729

Charles Tiefer (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States

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