2012 is shaping up to be the Year of the Commerce Clause. Not only is the Commerce Clause at the center of the Supreme Court ‘s impending review of the Affordable Care Act later this spring; it is also at the heart of a statement made by a federal district judge in Voggenthaler v. Maryland Square, LLC that the Constitution bars the application of RCRA’s citizen suit provision in the case of a local groundwater contamination plume:
The central issue in this case is an alleged contamination plume located in Las Vegas, Nevada. As noted by [defendant] the contamination is a local and isolated plume that does not affect the channels of interstate commerce or the instrumentalities of interstate commerce. As such, the subject matter of this lawsuit exceeds the authority granted by the Commerce Clause and this Court lacks subject matter jurisdiction over the claims asserted.
Although the court went on to note that it couldn’t formally rule on the Commerce Clause issue because the defendant had been dismissed on other grounds, several commentators (here and here) have suggested that RCRA citizen suits may be subject to constitutional challenge where the contamination does not cross state lines.
While hope springs eternal among defendants in environmental contamination cases, it’s hard to see how the Commence Clause can be construed to bar RCRA citizens suits on the ground that the contamination is local. The Commerce Clause has repeatedly been held to permit regulation of local activity in order to further a wide range of national objectives affecting interstate markets, such as preventing discrimination or regulating the use of marijuana. “Cradle to grave” regulation of hazardous waste would seem to be precisely the type of national objective permitting regulation of local activity. Moreover, if RCRA citizen suits cannot pass constitutional muster, the same would apply to CERCLA cases involving only “local” contamination. At this point, the constitutionality of CERCLA seems beyond reasonable challenge. Indeed, my friend and partner Seth Jaffe blogged in 2009 that the various challenges to CERCLA’s constitutionality reminded him of the Saturday Night Live bit in which Chevy Chase endlessly reported that Francisco Franco was still dead and CERCLA was still constitutional. RCRA is likewise still constitutional.