CEI Files Brief In State Of Nebraska’s Arsenic Standard Lawsuit Against The EPA

Full Brief Available In PDF Format

Summary Of Argument

EPA’s arsenic standard for drinking water imposes stringent limits on a contaminant that is not contagious.  The target of its regulation, drinking water, is produced by water systems predominantly serve community residents and local customers, and that ship across state lines only in the rarest of cases.  The Safe Drinking Water Act, the statutory authority for EPA’s regulation, was enacted with minimal regard for contagion and interstate commerce, factors which were the original focus of federal drinking water regulations.  For these reasons, both the standard and the Act exceed Congress’s regulatory power under the Interstate Commerce Clause.  This is clear from a series of recent Supreme Court decisions, which demonstrate that this federal power encompasses only those economic activities that significantly and directly affect interstate commerce.  Under those decisions, the cumulative cost of a traditionally local issue, such as crime or health, does not by itself transform that issue into a proper target of federal regulation.   Moreover, both the arsenic rule and the Act are contrary to the Tenth Amendment, inasmuch as they unjustifiably intrude on the protection of health, an area that has long been a state government function in the absence of such special factors as communicability. Finally, because the standard imposes affirmative informational requirements upon state and local governments, it violates both the First Amendment and the Tenth Amendment, as demonstrated by judicial rulings regarding mandatory speech.