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Arsenic and Old Case(s): Debating the Constitutional Scope of the Safe Drinking Water Act and Other National Environmental Laws: A Panel Discussion by Counsel in Nebraska v. EPA

June 12, 2003

Increasingly, federal courts are entertaining broad constitutional challenges to the scope of national environmental statutes. The Clean Water Act, the Endangered Species Act, and the Surface Mining Control and Reclamation Act have all weathered legal attacks arguing that they exceed Congress’ authority to regulate intrastate or local activities under the Constitution’s Commerce Clause. The latest constitutional challenge to a national environmental law is Nebraska v. Environmental Protection Agency, recently argued before the United States Court of Appeals for the District of Columbia Circuit. At issue in the case is whether the “Arsenic Rule” (as enacted by the Clinton Administration, then delayed and ultimately allowed to go into effect by the Bush Administration) and the Safe Drinking Water Act (SDWA) exceed the scope of the Commerce Clause and/or violate the Tenth Amendment in regulating drinking water supply systems, including systems that may serve only local, intrastate users. This little-known case could have powerful implications not only for the SDWA, but also for the constitutionality of other environmental laws.

On June 12, 2003 ELI held an Associate Seminar, co-sponsored by the American Constitution Society, on the constitutional scope of the SDWA and other national environmental laws. The panelists,- each of whom was a counsel of record in Nebraska v. EPA - included, Steven Rogers (Environment & Natural Resources Division, US DOJ), Erik Olson (Senior Attorney, NRDC) and Sam Kazman (General Counsel, Competitive Enterprise Institute). Moderated by Richard Lazarus (Professor of Law, Georgetown University), the panelists not only explored the constitutional issues raised by that case, but also shared their views on the viability of other recent, pending, and future litigation, calling into question the reach of federal environmental laws.

This seminar was part of the Environmental Law Institute’s new Environmental Law Legacy Seminar Series, which convenes legal scholars and practitioners to explore recent and pending constitutional law decisions applicable to environmental law and the consequences of emerging legal trends for environmental protection.