New Clean Water Act Cases at Court and "Economic" Element

[Hamilton02 at aol.com]

The Court just granted cert in two Clean Water Act cases that raise the  
question whether wetlands with no direct connection to navigable waterways can  be 
regulated under the CWA.  The leading arguments are that such regulation  is 
regulating noneconomic activity in these circumstances and/or that  there 
really is such a thing as a wholly intrastate activity beyond the reach of  
Congress.  I'm sure the government will argue that its overarching  environmental 
law scheme grandfathers in the wetlands a la Raich.  The  argument here, though, 
is better than in Raich that the intrastate  activity does not affect or 
undermine the federal scheme.  These cases  very well could put a limiting 
construction on the dictum in Raich  regarding overarching federal schemes and 
intrastate activity.
 
On an editorial note, once again the Bush Administration is taking an  
aggressive position in favor of federal power, and betraying its "other"  base.
 
Marci
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