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Implementing Rapanos - Will Justice Kennedy's Significant Nexus Test Provide A Workable Standard For Lower Courts, Regulators And Developers?, Bradford Mank

Faculty Articles and Other Publications

In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters. SWANCC did not address the Corps' regulation of wetlands near non-navigable tributaries. The courts of appeals are divided over if the Corps may regulate tributary wetlands. Mank, The Murky Future of the Clean Water Act After SWANCC, 30 ECOLOGY LAW QUARTERLY 811-891 (2003).

In 2006, the Supreme Court …

After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In four separate cases, three circuit courts (the District of Columbia, Fourth, and Fifth Circuits) struggled with deciding whether Congress may still protect endangered and threatened species that have little commercial value under the Commerce Clause after Lopez and Morrison. In each case, the court concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small …