Deathbeat in New England
Where Goeth Federalism?

Clean Water Act and the Commerce Clause

In United States v. Gerke Excavating, No. 04-3941 (7th Cir. Jun. 21, 2005), Judge Posner applied Gonzales v. Raich's broad holding to a Commerce Clause challenge against the Clean Water Act.  The government's argument in Gerke would have been comical had the panel not accepted it.  The government argued that it could regulate this piece of land:

Located on a 5.8 acre tract near Tomah, Wisconsin, that the owner wanted to develop, the wetlands are drained by a ditch that runs into a nonnavigable creek that runs into the nonnavigable Lemonweir River which in turn runs into the Wisconsin River, which is navigable.

Slip op. at 2 (emphasis added).  Is this chain of inferences enough to give Congress the power to regulate the excavation?  Yes.

Obviously filling in a 5.8 acre tract (not all of it wetlands— we do not know how much of it is) is not going to have a measurable effect on the depth of the Wisconsin or Mississippi Rivers. But that cannot be the test. The sum of many small interferences with commerce can be large, and so to protect commerce Congress must be able to regulate an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect. See, e.g., Gonzales v. Raich, 125 S. Ct. 2195, 2205-07 (2005); Wickard v. Fillburn, 317 U.S. 111, 118-29 (1942).

Slip op. at 4-5.  Thus, "[w]hether the wetlands are 100 miles from a navigable waterway or 6 feet, if water from the wetlands enters a stream that flows into the navigable waterway," then Congress can regulate it.  Id. at 6.

Lest you think this is a laughing matter, or that the case is no big deal, consider John Rapanos, a grandfather whom prosecutors wanted to send to prison because he filled in a ditch whose connection was more attenuated to interstate commerce than in this case.  Fortunately, the judge didn't sentence Mr. Rapanos to prison, though that's not much of a silver lining considering Mr. Rapanos is now a felon.

UPDATE: Greg Broderick of the Pacific Legal Foundation argued the case on behalf of Gerke Excavating.  His appellate brief is available here.  Mr. Broderick also wrote an interesting article entitled "The Shifting Sands of the Clean Water Act," which you can read here.  (Hat tip: Sandefur)

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