Abstract

The Ninth Circuit Court of Appeals' decision in Consejo de Desarrollo Economico De Mexicali v. U.S. epitomizes Congress' use of preemptive federal laws to impact the environment in the face of well established environmental regulations; specifically water resource allocation from the Colorado River's All-American Canal and its trans-national impacts. In Consejo, the two long running antagonistic forces of environmental resource allocation and increased population water needs coupled with industrial development came into conflict. However, before the Ninth Circuit could decide the issues of first impression presented by Consejo, it was precluded from reaching the merits of the controversy by Congressional action, namely Congress' eleventh-hour passage of the Tax Relief and Health Care Act of 2006. While purporting not to direct a result to the court, the act in fact precluded a judicial determination through the clever use of statutory language. Unsurprisingly, the court made clear that development was the victor. Congressional intent embodied in the plain language of the statute only served to bolster economic development and underscored objectives of the Tax Relief Act. As a result, judicial determination of the merits of Consejo (e.g., Equal Protection in water resource allocation, statutory conflict with other environmental regulations) must wait for either a California state court ruling or Congressional action that does not endorse water overindulgence from one community to the detriment of non-American users of the Colorado River basin water supply.