Cases test US role as nature cop

Call this the year when environmentalism meets federalism - head-on.

This clash over the scope of the US government's authority to protect the environment is the most contentious and potentially wide-ranging constitutional issue facing the US Supreme Court, which begins a new term today.

Other disputes of constitutional proportion are also on the high court's docket, among them search-and-seizure law, privacy, free speech, and discrimination.

How the nine justices resolve the federalism-environmental collision will go a long way toward answering basic questions about the scope of federal regulatory power and whether environmental protection will continue to be pursued as a national mandate or on a more piecemeal basis as the responsibility of individual states.

In three major environmental cases set for argument later this fall, the justices could dramatically scale back the power of the federal government to safeguard the nation's water resources and air quality.

If they do so, it will come in the name of reining in federal power in an effort to restore the state-federal balance envisioned by the Founding Fathers. And it will be accomplished through the authority of legal principles that were much more common in the pre-New Deal 1930s than at any time during the past 30 years of environmental legislation and regulation.

"The stakes are as large as we've ever had," says Richard Lazarus, a professor at Georgetown University who has studied 30 years of Supreme Court decisions dealing with the environment. "It is hard to imagine another term when the justices have faced such threshold issues about the fundamental structures of environmental law."

It remains to be seen whether the court's broader caseload matches the blockbuster lineup of last term - with its partial-birth abortion, Miranda rights, Boy Scouts, and school prayer decisions. Even if it doesn't, the term is nonetheless likely to produce decisions that will touch the lives of nearly every American.

Seat belts and roadblocks

In addition to deciding the scope of federal regulatory authority to protect the environment, the court will examine the propriety of randomly stopping motorists to allow drug-detecting dogs to sniff for concealed narcotics. In another case, it will determine whether a police officer acted reasonably when he carted a soccer mom off to jail because she wasn't wearing a seat belt - an offense normally punishable by a $50 fine.

The court will consider the plight of disabled Americans, deciding whether pro-golfer Casey Martin should be allowed to compete on the PGA tour using a golf cart, contrary to the rule that golfers must walk the course.

And in another potentially important case about state versus federal powers, the justices will decide whether disabled state employees in Alabama may sue the state government for discrimination under the federal Americans with Disabilities Act.

A South Carolina policy that requires hospitals to test pregnant women for narcotics use, and then turn over drug users to police for prosecution on charges of distributing illicit drugs to an unborn child, will also be examined by the court. The policy was upheld by a federal appeals court in Richmond, Va., but critics say the program targets low-income minority women and violates the privacy of pregnant women in public hospitals.

So far, the justices have accepted roughly two-thirds of the 70 to 80 cases they are expected to hear and decide between now and the end of June. Absent from the list are divisive mega-issues, like abortion or affirmative action, that might dramatically raise the profile of the Supreme Court in an election year.

Many analysts are stressing the importance of this presidential election to the future course of the high court. They suggest that the next president may have an opportunity, with one or more appointments, to either shore up the conservative wing or bolster the liberal wing.

But the bottom line now is that none of the nine justices seems inclined to step down any time soon. And although the Supreme Court looks like a hot election-year issue to many political analysts, it has yet to appear on the radar screens of most voters.

That doesn't mean the court's work won't be important and perhaps revolutionary this year.

The court is set to hear the key environmental cases Oct. 31 and Nov. 7. One is a challenge to the scope of the federal Clean Water Act. The other two question the ability and methodology of the Environmental Protection Agency to enact strict pollution controls under the Clean Air Act.

"These cases have the potential to have an impact far beyond the individual regulations being challenged," says Robert Percival, director of the environmental law program at the University of Maryland Law School and currently a visiting professor at Harvard Law School in Cambridge, Mass.

Congress, EPA, and clean air

At issue in the Clean Air Act case is a federal appeals court decision that the Clean Air Act grants so much unfettered discretion to Environmental Protection Agency bureaucrats that it amounts to an impermissible delegation of legislative authority by Congress.

Under the US Constitution, Congress passes the laws and the executive branch enforces those laws. But some areas of regulation are so technical that Congress has granted wide latitude to certain agencies to regulate in accord with the public interest or to safeguard public health.

The question raised in the case is: Who should decide what is best for public health, unelected regulators or the elected representatives of the people?

The appeals court resurrected the so-called nondelegation doctrine (which had not been cited since the 1930s) to justify striking down the EPA's new air-pollution standards. If the high court agrees and applies the doctrine, such a decision could result in "complete regulatory paralysis," Professor Percival says. "Congress would have to go back and essentially function as a mini-EPA."

The ruling wouldn't apply just to the EPA. Other regulatory agencies with broad congressional mandates, like the Federal Communications Commission, might suddenly find themselves at the center of a beehive of litigation challenging their authority to write detailed regulations without first obtaining specific instructions from Congress.

Clean water as 'commerce'

In the Clean Water Act case, the court will examine whether the US Army Corps of Engineers has the authority under the Constitution's "commerce clause" to block a landfill project outside Chicago. The project obtained local and state approval, but was nixed by the federal Corps of Engineers because ponds and lakes on the site were found to be home to migratory birds.

At the center of the case is the court's evolving commerce-clause jurisprudence, a developing constitutional standard that seeks to limit congressional and federal regulatory jurisdiction to only those activities that are primarily economic and that substantially affect interstate commerce. (All other areas would be subject to state control.)

Government lawyers argue that federal regulation is appropriate because migratory birds travel from state to state and that hunters and bird-watchers spend considerable money (a form of economic activity) watching and hunting those birds.

Lawyers challenging federal regulation say the Corps of Engineers is empowered to regulate navigable waters of the US, not isolated ponds and lakes. "While the court has had a series of commerce clause decisions in the past few years, this is probably the one with the biggest practical scope," says Professor Lazarus.

Glenn Sugameli of the National Wildlife Federation agrees. "This case could either uphold or severely undermine the federal government's ability to protect not only the environment, but civil rights, health and safety, and a host of other concerns," he says.

More specifically, environmentalists warn that a ruling against the Corps of Engineers could open up isolated wetlands across the nation for development, because many states have no regulations covering such areas.

On the other side, many conservative analysts have long complained about what they view as the unrestrained power of federal agencies to dictate the uses of private property. To these analysts, the court's consideration of such cases is long overdue.

(c) Copyright 2000. The Christian Science Publishing Society