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Exam Question for Constitutional Law Section

    In 1990 Congress enacts the Wetlands Protection Act (WPA). The only findings Congress included in the statute were that (1) “wetlands and wetland-adjacent areas are important breeding and stop-off points for various types of migratory birds,” and (2) that “wetlands and wetland-adjacent areas are being lost to residential and business park development at alarming rates.” The WPA prohibits large-scale development (e.g., the building of a residential subdivision or office park) of any parcel of land if the United States Army Corps of Engineers determines that the parcel “is, or has the potential to be, a wetland or wetland-adjacent area.” There is no requirement that the Corps of Engineers determine that a given parcel of land actually house migratory birds; if it is a wetland or wetland-adjacent area, then the statute’s development prohibition automatically applies.

    Rapacious and Thoughtless, a major land developer in Southern California, plans to develop “Ranchoview,” a mixed use office park and condominium complex, on land in Orange County. A marshy stretch of the Orange River runs through the parcel, and will have to be filled in in order for the project to be built. The Corps of Engineers orders R&T to stop development, based on its determination that the parcel is a wetland.

    Tom Thompson is a birdwatcher who lives a few miles from the proposed Ranchoview project. He keeps a bird feeder in his backyard in order to attract some of the migrating waterfowl that use the Orange River as a stop on their winter migration south. Tom is concerned that Ranchoview will make the River area loud and polluted, thus driving away the birds. Could he sue to block the project?

    Assume that Tom is a member of the National Audubon Society, an organization that is organized to protect the interests of birdwatchers. Could the Society sue on Tom’s behalf? On what conditions?

    Can R&T successfully argue that the WPA goes beyond Congress’ authority under the Commerce Clause?

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