A commenter on my last Rapanos-related post feels that I did not respond adequately to the concern that state efforts will be inadquate were the Supreme Court to narrow the scope of federal wetland regulation in Rapanos and Carabell. In this follow-up post, I will try to address this issue in greater detail (and point readers to articles in which I make some of these arguments in greater detail).
First, the fact that "only half" of states have wetland programs does not provide evidence that states would not protect wetlands in the absence of federal action. In fact, given the history of wetland regulation, I believe it suggests the opposite. State regulation of wetlands began in 1963, when Massachusetts adopted the first state wetland protection statute (which was itself modeled on preexisting local wetland protections). At this time, the federal government was not protecting wetlands. To the contrary, it was still subsidizing their destruction through various federal programs.
By the time the federal government got around to regulating the filling of wetlands in 1975, every coastal state save Texas had a wetland protection statutes on the books, and eleven states had freshwater wetland protection programs. The federal government did not lead the way in protecting wetlands. It was dragged along behind the states. Indeed, the U.S. Army Corps of Engineers only began regulating wetlands after it was told to by a federal court. [I recount this history in some detail in my article "Wetlands, Waterfowl and the Menace of Mr. Wilson, 29 Env. L. 1 (1999).]
Second, it is alleged that states are unlikely to protect wetlands because "there are pressures in local communities for land development that keep [state and local] guidelines from being as rigorous." Relatedly, some contend that the pressure to compete with other states for economic development will discourage states from adopting costly environmental measures. This "race to the bottom" argument is familiar, but it is also undermined by the empirical evidence. The pattern of state regulation prior to federal involvement is the exact opposite of what the RTB theory would predict. Those states with the most wetlands, measured as a percentage of their land area, should have been the least likely to regulate. Yet they regulated first. Indeed, every state in the continental U.S. with more than ten percent of its land area classified as wetlands regulated prior to 1975. Moreover, many states contain wetland protections that are more extensive, expensive, and ecologically minded than the federal program. [I have more to say about the alleged RTB here, as well as in the article cited above.]
The available evidence is even more suggestive when one realizes that the incentive for states to adopt their own wetland protections dropped dramatically once the federal government got into the act. In simple economic terms, the net benefits of adopting such programs declined to the extent that federal regulation served as a substitute for state regulations. Even those states that, today, demand greater levels of wetland protection than the federal government provides may be discouraged from adopting new programs by the existence of the federal regulations. [I have much more to say on this potential "crowding out" effect of federal regulation in this draft paper on SSRN.]
No one can say for certain what states (and local governments and non-governmental conservation groups) would do were the federal government's regulatory authority limited by the Court, but I do believe the evidence suggests that states, on the whole, would be significantly more active than they are today. As I noted in my last post, after the Supreme Court's 2001 SWANCC decision, it appeared that the federal government’s CWA jurisdiction would limited substantially. In this period, numerous states began to consider new measures to fill the gap. In some states, such as Ohio, these measures were adopted. Within short order, however, it became clear that both the federal government and most lower courts would read SWANCC narrowly, so the need for greater state efforts was less clear. Nonetheless, when it looked like greater state action was necessary, states appeared ready to respond (even if they would have preferred action at the federal level).
All of this does not mean that a curtailment of federal regulation will have no effect on wetland protection. But I believe it does show that the actual reduction in actual wetland protection caused by limitations on federal jurisdiction will be less than many fear. If greater attention were paid to the interrelationship between federal and state regulation, and more focus were placed on encouraging state-level, as well as localized and non-governmental wetland protection efforts, we could achieve greater levels of environmental protection at lower economic and social cost. There are many reasons to be dissatisfied with federal regulation, not least its poor record at delivering the environmental goods. If Rapanos and Carabell such regulation, I hope they will spur new efforts to consider possible alternatives.
In the end, it is important to look at the broader context. I would be the last person to claim that state regulation is perfect. But federal regulation is far from ideal as well. Indeed, I could cite dozens of environmental analysts lamenting the inadequacy of federal wetlands regulations -- the same regulations that some seem to suggest are the only things preventing utter ecological devastation. The relevant question is not whether a given balance of state and federal authority produces the desired level of environmental protection -- for many of us, that is unlikely to ever be the case -- but which institutional arrangement maximizes the combination of environmental protection and other values that are important to us. So, the relevant question is not "will [states/feds/others] do a good job," but which is best (or, perhaps, least worst).
Post-Script: One point I did not address is the concern about interstate pollution. In this context it is largely a red herring. Federal wetland regulation has little to do with the control of interstate pollution spillovers. And while a decision limiting this program will have some effect on other parts of the CWA, it need not have much (if any) effect on federal efforts to control interstate water pollution. If there is interest, I can explain in greater detail in a subsequent post.
Related Posts (on one page):
- Scalia v. Roberts on Agency Deference in Rapanos:
- Preliminary Thoughts on Rapanos and Federalism - Much Ado About Very Little:
- More Perspectives on Rapanos:
- Initial Thoughts on Rapanos:
- Rapanos & Carabell Decided:
- Rapanos, Wetlands & State Regulation:
- Do Rapanos & Carabell Threaten the Everglades?
- Waiting for Rapanos (and Carabell Too):
I meant to post this in response to your earlier entry on this subject but never got around to it. When you were discussing the potential for the Supreme Court to reach a compromise verdict you discussed "both" properties. There are actually four properties involved in Carabell/Rapanos. The three Rapanos properties are Saltzburg, Pine River, and Hines Road. Then there is the single Carabell property.
If there is going to be a narrow Supreme Court ruling, my best guess is that it will be on the question of whether drainage ditches are tributaries of navigable waters.
Further, in your previous message there was an implication that the Michigan regulatory scheme was easier to surmount that the federal scheme since the Carabells were able to obtain a state permit. There are two things to note in this regard: (1) Pursuant to 33 USC 1344(g) and (h), Michigan has assumed control over the wetlands-permit program (NJ has also done this). This means that the Michigan wetlands laws and regulations are supposed to provide as much protection as the federal scheme; and (2) the Carabells were only able to obtain a permit after a state court decision. The state regulatory agency denied their state permit; the Carabells then went through the state courts, and only after obtaining the state permit did the federal government contend that a federal permit was also necessary.
In fact, this arguement is constitutionally irrelevent. If the Feds do not have the power to regulate this issue, then they don't. You or the commenter may be "concerned" that, in your unelected view (meant technically - not as an ad hominem) state regulation will be "inadequate," but that is not your business. It is the people of the states that will decide what wetland regulation is "adequate" by that state's standards and law. In short, if the Feds have no jurisdiction, then it is none of the Feds' business that any state chooses to regulate in a way the Feds dislike. In fact, some states may choose to not regulate at all.
It seems to me, the commenter is looking at the outcome he or she like -- "adequate" regulation -- and then seeking an argument that gets him or her to that outcome. The real question is: does the Constitution reserve this power to the states? If the answer is "yes," then it doesn't matter that the commenter, or you, or I, or the Feds may think the resulting state regulations is "inadequate."
How on earth can you call interstate pollution a red herring? Also by limiting the discussion solely to "pollution", you are dismissing issues that are of Federal interest that are just as important to the wetlands debate. Wetlands protection also is intertwined with flood control policy (in fact that, not the pollution issue, was the impetus for early regulation), inland navigation, fisheries, logging, agriculture, wildlife management (both game and nongame and when you talk about migratory birds, international treaties), hurricane protection (a half-mile of mature cypress swamp is worth more than the best man-made levee in stopping hurricane storm surge and braking winds), and international treaties when rivers and lakes cross international borders (we have complicated agreements with both Mexico and Canada about the waters we share with them).
Even the borders between states can take years to resolve when water is involved. It took 250 years for South Carolina and Georgia to finally resolve the border between the two states near the mouth of the Savannah River--an argument that predated the founding of the United States.
I live in New Orleans. Our wetlands are being destroyed by 80 years of flood control policy in the entire Mississippi/Ohio/Missouri River system and 60 years of offshore oil and gas drilling in the Gulf of Mexico on Federal waters. To restore our wetlands will require Federal efforts because it involves Federal policy stretching over portions of 31 states. To think that can be regulated without federal involvement is madness.
This post, and the others in this series, are focused focused on the potential limitation of federal jurisdiction in the Rapanos and Carabell cases. Even were the Court to adopt the most ambitious argument put forward by the petitioners -- an outcome I have already explained is exceedingly unlikely -- this would have no effect on federal jurisdiction over navigable waterways and adjacent wetlands. Therefore, the federal government's ability to address most of the concerns you address -- such as the problems affecting the Louisiana coast -- would be unaffected. In the case of other problems, such as localized environmental impacts, your post suggests no reason why states would be less likely to address these concerns than the federal government.
JHA
I can't see how offshore drilling in federal waters (which I think are defined as beginning 12 miles off the coastline) have much impact on the wetlands / flooding situation around New Orleans. Inland drilling in marshes probably had an impact but most of that was related to the dredging of transport canals for movement of rigs and supplies.
One of the big problems with the wetlands is sediment starvation. They are sediment starved because the flood control structures around New Orleans direct sediment flow to the gulf of mexico. They prevent overbank flooding and the feeding of sediment into the wetlands.
Normally the Mississippi would deposit sediments and build wetlands and topographic elevation. Once the elevation reached a certain point the mouth of the river would move either east or west because it was easier to transport sediments down a steeper gradient. The flood control structures force the river into the same channel and keep the river from abandoning the current channel. So New Orleans keeps the port, the areas around it remain habitable, and the wetlands continue to decline.
As long as the New Orleans flood control structures are in place and holding the flood control policies of the surrounding states have little impact. The river flow is constrained in channels and flows directly into the gulf of mexico.
Well, as I understand these cases, the core issue is exactly what is an "adjacent" wetland. So depending on how the case works out, it may come down to exactly that.
As for my post suggesting no reason "why states would be less likely to address these concerns than the federal government". The exact same thing could be said about your main post. It is just a blind assertion on your part that if the Federal government's hands are tied the states will step in and "we could achieve greater levels of environmental protection at lower economic and social cost." However, I doubt you are really concerned about actually achieving greater levels of enviornmental protection. Your true interest is lifting the heavy hand of Federal regulation from private lands so you can fill in wetlands to your heart's content, the consequences to people in another state 500 miles downstream (or those Godless Canadians) be damned.
You vague assertions that the states will take up the slack and everything will be okay is hardly reassuring. Because I guarantee you they won't, especially in states like Texas, Florida, Mississippi, Alabama, and Georgia, where slash and burn is still the preferred method of doing things.
Well, you see, the oil doesn't magically get teleported to the refineries inland. There is a huge network of pipelines running through the marshes that has to be maintained.
And while it is true that we could help our wetlands by diverting more sediments into the marshes south of the city, the channeling of the Mississippi system has drastically reduced the total amount of sediment running through the system, so the entire lower Mississippi is starved for sediment. Of course if the Mississippi were allowed to run free it wouldn't even flow through New Orleans any more but through the Atchfalaya.
The core issue in these cases is not what is or is not "adjacent." None of the parcels at issue is remotely adjacent ot a navigable waterway (though some are adjacent to tributaries and/or ditches). Whether or not a hydrological connection is required for federal jurisdiction and, if so, how much, is at issue.
As for my intentions, I would recommend you spend the time to look at my work on wetlands and review the evidence I have cited in my longer articles before casting such aspersions on my intentions or my arguments.
JHA
I am familiar enough with your work and arguments and the organizations you have worked for and been supported by (the "non-partisan" Competitive Enterprise Institute, Cato, National Review, etc.) to be suspicious of your true intentions.
This highlights the importance of the question of whether the federal government is allowed to set the rules for the entire country or whether it is limited under the terms of the CWA or the Commerce Clause. If there are limits to federal jurisdiction, then the policy arguments surrounding the impact of placing fill in wetlands will have to be determined on a state-by-state basis. Obviously, the states will be able to choose and some might not create legislation that would mirror the current federal protections.
But the first principle is not the environmental impact of placing fill; the first principle is what level of government should be setting that policy in our federalist system.
Actually, the pertinent question should be how much leeway did Congress give the agencies (in this case, I believe it is the Corps of Engineers) promulgating the regulations in defining the waterways of the United States. I have a feeling that, considering the current make up of the Supreme Court, the Supreme Court is going to substitute their expertise as to what is and is not a adjacent or hydrologically connected to a navigable waterway and subject to regulation over that of the Federal Agencies delegated with enforcing the regulations.
SWANNC, 531 U.S. at 172-73.
Presuming, as I do, that this case nears the outer limits of Congress's Commerce Power (yes I believe in the tooth fairy also), it would seem that the Court will hold the agencies cannot extend the definition of navigable waters to the properties in question.
If Texas wants to have no regulation of wetlands, resulting in their unlimited fill, resulting in environmental degradation within Texas (approximately 9% of the continental U.S. land mass), resulting in hazard increases that will lead Texans to demand federal emergency aid, (fill in additional impacts beyond the boundaries of Texas here), should Texans, as residents of a sovereign state, have the right to do that, damn the consequences?
That is precisely my point. What Texas "should" do is not constitutionally relevent. If the Constitution reserves this power to the states, then Texas may do -- or not do -- what its elected representatives deem appropriate. That is what "federalism" means. The separation of powers does not, theoretically, turn on what you, or I, or the court thinks is the "better" policy.
The legal question is: is the real estate at issue part of the navigable waters of the US? If yes, then the Feds may regulate. If no, then the Feds may not regulate no matter how bad that may seem.
That's why I accused Mr. Adler of being disingenous and questioned his motives. He claims that if Rapanos prevails the states will step in to protect wetlands, so the impact will be minimized by state action. To prove his point he points to preexisting state regulations of wetlands (with the "minor" exception of Texas) before the Federal government took over.
He implies that the purpose of those regulations was pollution control, when he (should) know full well that most wetlands regulation prior to the current Federal Regulations were aimed at flood control, not pollution control. Wifully distorting the purpose of previous regulations is not only dishonest, but raises questions about the true motives for attempting to assure us that gutting federal protection is nothing to worry about. As is flippantly dismissing the problems of interstate pollution as merely a "red herring", when it is most assuredly not.
Now, in addition to your questioning of my motives, and calling me "dishonest" and "disingenuous," you are misrepresenting what I have argued.
First, nowhere do I imply that the purpose of state wetland regulations was pollution control. I have been writing about state and federal wetland protection efforts for nearly a decade, and I have never advanced such a claim. To the contrary, I have written articles pointing out the need for greater analytical precision in matching the nature of an environmental problem and the proposed response (see, e.g., here and one of the articles">here).
Second, I have not dismissed interstate pollution as a legitimate environmental concern. To the contrary, in one of the articles (to which I linked above) I call for greater federal action to address interstate pollution spillovers. What I said above is that interstate pollution is a "red herring" in the context of the Rapanos and Carabell cases, and you have provided no evidence or argument to the contrary.
In addition to state actions prior to 1975, I have pointed to subsequent state efforts, many of which exceed federal regulations, and put forward a theory of state-federal regulatory interaction. I have further pointed out that any analysis must compare the likely result of a limitation on federal jurisdiction with the actual performance of current programs, not some hypothesized ideal. Finally, I have made these arguments in the context of a limited reduction of federal jurisdiction, not a wholesale abdication of any federal role. I am still waiting for a substantive response to any of this. That would be more productive than further ad hominems and, yes, red herrings.
JHA