Court Hears Case on Environment

Tuesday, October 31st 2000, 12:00 am
By: News On 6

WASHINGTON (AP) — On its face, the fight over a patch of bog in Illinois is a run-of-the-mill tiff between the federal government and local officials over development rights.

Beneath the details about wetlands protections and the needs of migratory birds, however, the case before the Supreme Court on Tuesday is a broad challenge to the way the federal government protects civil rights and the environment, among other things.

The nine-member court, closely divided on a series of rulings curbing federal powers, could use this case as a showdown over the importance of local versus federal control, said Elliot Mincberg of the liberal advocacy group People for the American Way.

``It clearly could have far-reaching effects,'' Mincberg said. ``What it really depends on is how aggressive and how united the five-person majority is going to be and how far they want to go.''

The group filed an opinion paper with the court warning that the court risks undermining the system of federal civil rights protections that Americans have come to expect.

Interest groups from the U.S. Chamber of Commerce to the National Gay and Lesbian Task Force also have weighed in with two dozen friend-of-the-court papers.

Much of the federal government's regulatory power derives from the part of the Constitution that gives Congress sway over ``interstate commerce.'' Using an expansive definition of commerce, the government's regulatory apparatus grew rapidly in the latter half of the 20th century.

For the last five years, the Supreme Court has issued a series of rulings chipping away at federal power over states, using the general principle that the commerce clause does not apply to noneconomic activity inside a state's borders.

The Illinois case concerns a group of local governments that want to build a landfill on about 17 acres of wetlands near Chicago. The Army Corps of Engineers said no, because the land is sometimes used as a stopover for protected migratory birds.

Lower courts ruled that the Corps acted properly under the 1972 Clean Water Act. One of the environmental law's goals is protection of wildlife.

``This is a classic example of regulatory overreaching,'' Robin Conrad of the Chamber said of the wetlands dispute. ``We think that it's quite a stretch to say you have commerce clause jurisdiction just because a bird lands.''

The federal government takes the wide view in defending its regulatory power.

Filling in one wetland might not have effect beyond Illinois' borders, but the danger lies in local governments everywhere making the same decision, the government argues.

The same principle applies to the legal basis for some federal civil rights protections: governing housing, employment, education and other areas. The idea is that although racial discrimination by one hotel, for example, might have only limited effect, the same discrimination by hotels in various states would have broad economic effect.

In court papers, Solicitor General Seth Waxman said Congress has jurisdiction because of ``the aggregate effects of the regulated activity.''

The government also claims that Americans spend more than $1 billion annually hunting or observing migratory birds, and that some people travel across state lines to do so.

The case is Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 99-1178.


On the Net: For the appeals court ruling in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers: and click on Seventh Circuit.