Court Cases That Concern You

The U.S. Supreme Court recently heard oral arguments on two cases that will have significant effects on future growth, land use and development.

In late October, the high court heard arguments on whether or not shallow, often dry land depressions known as "isolated wetlands" can be regulated by the U.S. Army Corps of Engineers through the U.S. Constitution’s Commerce Clause. Then, in early November, it considered air quality standards promulgated by the U.S. Environmental Protection Agency. In both cases, NAHB filed amicus (friend of the court) briefs because the rulings could have such dramatic effects on land use and growth.

The wetlands case, Solid Waste Agency of Northern Cook County [Illinois] vs. U.S. Army Corps of Engineers (the Corps), boils down to a single question: Can a federal agency restrict land use in an isolated wetland not connected to any other body of water just because a migrating bird might land in that wetland?

The air quality case stems from new standards for ozone and particulate matter that the EPA issued in 1997. An industry coalition led by the American Trucking Association (ATA) and including NAHB challenged the standards in 1998, and the U.S. Court of Appeals said the EPA’s authority to enact health-based standards had to be based on an "intelligible principle" demonstrating their need.

The court noted that federal agencies making regulations to protect public health and safety can’t set standards arbitrarily. In effect, the regulators must state why the standards they set will benefit the public’s health. The EPA appealed its case to the Supreme Court earlier this year.

It may be as late as mid-2001 before the high court rules on these two cases. Until then, we can only hope that the Supreme Court agrees with our positions on these key issues.