Greg Page wrote a Spring 2000 article titled "Lucas v. South
Carolina Coastal Council and Justice Scalias Primer on
Property Rights: Advancing New Democratic Traditions by Defending
the Tradition of Property" for the William and Mary Environmental
Law and Policy Review.
He writes, "Lucas does much more to protect individual
owners than delineate when the state, without paying compensation,
can or cannot prohibit their desired uses of protected property.
The essence of Lucas is that, although it defines constitutional
property with the democratic traditions that precede its particular
acquisition, governments can never divest those traditions from
individual owners without remitting "just compensation."
Where government takes traditions of property with regulations or
prohibitions that law-abiding individuals cannot discern in pre-existing
laws, Lucas requires the state to surrender that which individuals
otherwise would have had to acquire by revolution or civil strife:
money and concomitant power from the public purse. The power of
Lucas is that, by defining constitutional property with accessible
traditions, it enables average citizens to adapt to new democratic
traditions, escape from them, or replace them in their private lives.
With these traditional and comparatively simple concepts, Lucas
gives individuals a secure basis in accessible laws to plan steadfast
lives around, and thereby change or successfully avoid, the traditions
of property that their society holds dear."
The Chamber of Commerce issued an amicus curiae brief
that in support of the petitioners in Solid Waste Agency of Northern
Cook County v. United States Army Corps of Engineers, et. al.
The Chamber writes, "This case does not challenge the power
of federal agencies to regulate activities that cause the pollution
of interstate waterways, their tributaries, or adjacent wetlands.
The pollution or filling of wetlands that are connected to navigable
waters undoubtedly can have significant impacts on the instrumentalities
of interstate commerce (navigable waterways) and interstate commerce
itself. Congress accordingly should, and does, have ample authority
over these truly interstate and commercial problems.
The case instead presents the question whether the federal government
may set land-use policy for 17.6 acres of hydrologically isolated
wetlands, whose only connection with interstate commerce is the
fact that they are actual or potential landing zones for
migratory birds. Under the "migratory bird interpretation"
of the U.S. Army Corps of Engineers, the answer to that question
is an emphatic yes that puts the federal government in the
leading role in land-use decisionmaking for, not just this isolated
plot, but every "damp depression" in the nation. The migratory
bird interpretation threatens to impose Army jurisdiction over every
backyard in the United States
For reasons described below, both the spirit and letter of the
Constitutions limits on federal power are exceeded by the
migratory bird interpretation. At the outset, this Court has long
recognized that land-use planning is situated squarely on the State
side of the line of demarcation between federal and State responsibilities.
The migratory bird interpretation not only prevents States from
fulfilling their role as the laboratories for policy innovation,
it does so in a context where both this Courts precedents
and the lessons of experience teach that States most often know
But even beyond policy implications, the limitless migratory bird
interpretation cannot be squared with this Courts Commerce
Clause jurisprudence. As is evident from the attenuated chain of
reasoning employed by the court belowa chain so thin that
it would permit unfettered federal regulation of all aspects
of local affairsthe Corps asserted regulatory justification
lacks any substantial relation to economic activity of any kind,
much less to interstate commerce. The occasional use of a wetland
by a migratory bird "by its terms has nothing to do with commerce
or any sort of economic enterprise, however broadly one might define
those terms." United States v. Lopez, 514 U.S. 549,
561 (1995). Moreover, the fact that this intrusive regulation of
non-economic activity has unfortunate economic side-effects cannot
be used as a bootstrap to salvage the Corps interpretation
from constitutional infirmity."