Constitutional Challenge to Drinking Water Rules

Nebraska and CEI Take EPA to Court

The Competitive Enterprise Institute (CEI) and the State of Nebraska are challenging the constitutionality of EPA's arsenic in drinking water standard before the U.S. Court of Appeals for the District of Columbia beginning April 15. CEI, on behalf of several small water systems, and Nebraska charge that the standard regulates a purely local issue, and therefore exceeds Congress's authority under the Commerce Clause of the U.S. Constitution.

EPA has changed the standard for arsenic in drinking water from 50 parts per billion to 10 ppb. The new standard will impose huge costs on many state and local drinking systems, while its benefits are extremely speculative. Some families may even be forced to use their own well water as a result, thus taking on a far greater health risk. Most importantly, arsenic in drinking water poses no acute or communicable threat; for this reason, it does not affect interstate commerce and its regulation properly belongs to states and localities.

"The demands of the new standard are absurd," says Sam Kazman, CEI's General Counsel. "The science has failed to find any adverse impacts of arsenic in U.S. drinking water at the 50 parts per billion level, a standard that has been in place more than 50 years. Many poor Americans will likely disconnect from their current water supply to avoid the rule's costs; as a result, the riskiness of their water supplies will increase, not decrease, under the rule. Most importantly, this is a purely local issue that EPA has no business regulating."

In a series of recent cases, the U.S. Supreme Court has made it clear that there are limits to what Congress can regulate under the Commerce Clause. Health and safety issues, which are traditionally matters of local concern, must have significant interstate effects before they can be regulated by federal agencies.

The text of CEI's court filing is available online at


Post new comment

  • Web page addresses and e-mail addresses turn into links automatically.
  • Allowed HTML tags: <a> <em> <strong> <cite> <code> <ul> <ol> <li> <dl> <dt> <dd>
  • Lines and paragraphs break automatically.

More information about formatting options