United States v. King
District court rejects argument that criminal enforcement of Safe Drinking Water Act against unpermitted deep-well injection is beyond the federal Commerce Clause power
Status: On appeal to the Ninth Circuit, No. 09-30442; case argued Nov. 3, 2010
Discussion & Analysis: By the 1970s, laws had been enacted to protect surface waters from pollution, most notably the federal Clean Water Act. To avoid the regulatory requirements for surface water discharges, polluters injected wastewater into underground aquifers. Compounding the problem, the legal framework for underground injections placed the burden on the government to show that the injections caused environmental harm before they could be stopped. The problem became so pervasive that Congress passed the Safe Drinking Water Act (SDWA), requiring anyone seeking to inject any fluids (with limited exceptions) into groundwater to first obtain a permit to ensure that there would be no harm to the drinking water supply. Under the SDWA, states may establish their own regulations for underground injections so long as they meet minimum federal standards and receive approval from the Environmental Protection Agency (EPA).
Idaho was operating under its EPA-approved SDWA program when an agricultural inspector went to inspect the Double C Ranch in 2005. In addition to maintaining thousands of acres of irrigated grazing land, the Double C operates a concentrated animal feeding operation with over 20,000 head of cattle. For decades, the ranch had injected nearby surface waters into underground wells for the purpose of reusing the water for irrigation, without obtaining the necessary permit. At the ranch, the inspector was informed by an employee of his belief that underground injections were still going on at the farm. An inspection of the piping system confirmed this.
Cory King, the manager of the ranch, was subsequently charged, tried, and convicted of a criminal violation of the SDWA, and corresponding Idaho law, for willfully injecting water without a permit. Among his arguments in defense, he claims the SDWA permitting program is unconstitutional as applied to intrastate groundwater bodies that are not used for drinking water, because it exceeds Congress’ constitutional authority under the Commerce Clause.
In 2009, the federal district court for Idaho rejected this argument, ruling that underground injections for irrigation on a commercial ranch have a “plainly economic character” and are within Congress’ power to regulate activities that have a “substantial effect” on interstate commerce. King argued that his injections should not be subject to the permitting requirement because the water injected was, according to him, not contaminated, and because the wells where it was being injected did not supply drinking water. Further, he maintained, all of these activities took place wholly within the state of Idaho.
These arguments, the court ruled, missed the point: Congress enacted the SDWA as a “prophylactic” measure—to prevent harmful injections of wastewater by requiring any injection of water, harmful or not, to first obtain a permit. If this permitting scheme were invalid, or not required, for injections that later proved to be harmless, Congress’ intent in passing the SDWA would be upended. In effect, the situation would revert to the pre-SDWA framework in which the government had the burden of proving that harm had occurred from an injection before being able to regulate. The court deferred to Congress’ conclusion that the previous framework did not provide an adequate level of protection for the U.S. drinking water supply.
King appealed to the Ninth Circuit on the issue of the SDWA’s constitutionality and other issues. Although no clear harm to the environment or human health is at stake on these facts, a ruling in favor of King would have immense significance. An adverse Commerce Clause ruling in just one case can undercut the comprehensive regulatory scheme that Congress enacted to deal with a major environmental—and economic—issue: here, protection of U.S. drinking water supplies. And because that holding would be based on an interpretation of the Constitution rather than a single statute, it could also be used to undermine the reach of other federal statutes, like the Clean Water Act or the Endangered Species Act. In other words, a constitutional victory for King could be a blow to environmental protection under other laws, and in other—far more troubling—factual settings.
Key Opinion: United States v. King, 2009 WL 940600 (D. Idaho April 6, 2009).
See Also: Nebraska v. EPA, 331 F.3d 995 (D.C. Cir. 2003) (upholding SDWA water quality regulations against state’s facial challenge under Commerce Clause).
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