The federal interest in non-poisoned reservoirs

John Noble jnoble at DGSYS.COM
Thu Jun 13 14:44:11 PDT 2002


At 11:11 PM -0700 6/12/02, Tobias Wolff wrote:
>> I don't think the Court would have trouble concluding that commerce in
>> the water supply -- like, e.g., commerce in telecommunications (or
>> radioactive waste) -- is essentially interstate, even though the
>> transport is intrastate in identifiable instances. But I think you are
>> right that the anti-commandeering doctrine would be an obstacle to
>> dictating local government spending on the water supply (as well as
>> radioactive waste).
>
>Well, they had trouble finding that commerce in migratory birds was
>essentially interstate, even though their resting place at a watering
>hole was intrastate in an identifiable instance.

I take it the reference is to Holland v. Missouri, but there's a lot of
water over the commerce clause dam since 1920(?). Note Thomas' lone dissent
from the denial of cert in Cargill Inc. v. U.S., 516 US 955, from the 9th
Cir. holding that the presence of migratory birds on private property did
create a sufficient connection to interstate commerce to permit federal
regulation.

John Noble



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