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The next Supreme Court battles over the power of the federal government will be fought over the air and the water. The justices on Monday picked two cases for next term that question how regulators enforce the Clean Air Act and the Clean Water Act. In Browner v. American Trucking Associations, the Environmental Protection Agency is challenging a federal appeals court ruling that said it had overstepped its bounds in implementing anti-smog rules. The case asks a potentially blockbuster question of how much power Congress is constitutionally allowed to delegate to an agency. The underlying ruling, issued by a 2-1 vote last year by the U.S. Court of Appeals for the D.C. Circuit, could undermine how the federal government regulates many industries-with Congress passing broad policy goals and the executive branch carrying them out. The D.C. Circuit’s decision sided with the American Trucking Associations, the U.S. Chamber of Commerce, and other industry groups. The appeals court in Washington said that the EPA failed to identify any “intelligible principle” in limiting ozone levels. The case represents a new arena in the recent tussle between the Court and Congress. In the 1930s, the high court struck down several New Deal laws as exceeding the power of Congress to delegate to regulators. The Court eventually acquiesced and granted agencies flexibility to set regulations, says Richard Lazarus, who teaches environmental and constitutional law at the Georgetown University Law Center. The EPA case, Lazarus says, “is exceedingly important” to all federal agencies. While many Supreme Court observers had expected the justices to take up the EPA case, the decision to grant cert in Solid Waste Agency v. U.S. Army Corps of Engineers was a surprise, Lazarus adds. In that case, a municipal agency in Illinois claims the U.S. Army Corps of Engineers improperly stopped it from filling in ponds to build landfill sites. Since it deals with Congress’ powers to regulate interstate commerce, Lazarus says he expected the Court to simply send the case back to the 7th U.S. Circuit Court of Appeals light of last week’s rulings in United States v. Morrison and Brzonkala v. Morrison. In the Morrison decisions, the Court held that Congress could not allow women to sue their abusers in federal court on the grounds that violence against women affected interstate commerce. Last year, the 7th Circuit ruled 3-0 that the commerce clause did allow Congress to regulate state use of intrastate wetlands because the loss of wetlands has reduced the populations of migratory birds, which people cross state lines to hunt and observe. “The effect may not be observable as each isolated pond used by the birds for feeding, nesting and breeding is filled, but the aggregate effect is clear, and that is all the Commerce Clause requires,” wrote Circuit Judge Diane Wood.

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