One Hand for Federalism

A federal judge strikes down Superfund.

It was supposed to be a simple consent decree between the federal government and chemical manufacturer Olin Corp. regarding cleanup of a Superfund site, but the presiding judge ended up declaring much of the Comprehensive Environmental Response, Compensation and Liability Act (a.k.a. Superfund) unconstitutional. In a May 20 decision, District Court Judge W. Brevard Hand ruled that the Environmental Protection Agency cannot apply the Superfund law retroactively. Hand based his decision on the Supreme Court's 1994 Landgraf decision, in which the Court ruled that Congress must expressly state that a law is retroactive.

Jerry Taylor, director of natural resources at Cato Institute, estimates that "80 percent of all federal environmental law" would be found unconstitutional by this decision's standards and federal authority would be significantly scaled back.

Potentially far more significant was the judge's ruling that the Superfund law exceeds federal authority under the Commerce Clause of the Constitution. Because the Olin case involved an Alabama company with Alabama waste at an Alabama site, Hand ruled that the federal government had no jurisdiction. Since the New Deal, the Commerce Clause has been interpreted by the courts as sanction for virtually any federal legislation, no matter how tenuous the link with interstate commerce. But in last year's U.S. v. Lopez, the Supreme Court struck down a federal gun-free school zone law on the grounds that the regulated activity did not "substantially" affect interstate commerce.

Federal officials and environmentalists say Hand's ruling is "an anomaly" that is unlikely to be upheld on appeal. "Lopez was an adjustment on the margins rather than a fundamental recasting of federal authority," says Karen Florini, senior attorney for the Environmental Defense Fund.

Cato's Taylor says Hand's ruling was based on "rock-solid reasoning." He believes Hand's reasoning on retroactivity may be upheld, but Hand's extension of Lopez is a different matter.

"If the Court meant what it said in Lopez, it will be upheld," Taylor says. But many Court observers believe Lopez was a trial balloon to see if the new, supposedly anti-government and anti-Washington Republican-led Congress would support a Court shift toward limiting federal power. And the GOP Congress has not been giving the Court positive signals. In the wake of media hype over church burnings in June, Congress unanimously passed the Church Arson Prevention Act of 1996–and claimed that the federal government can step in because church burnings affect interstate commerce. "The Court finally, tentatively, draws a line on the Commerce Clause. Then Congress says, 'Yes, we do have the power to do anything we want.' What's the Court going to make of it?" asks Taylor.