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Tuesday, June 20, 2006

Environment - More on yesterday's wetlands decision

Here are some quotes from Linda Greenhouse's front-page coverage in today's NY Times:

The Supreme Court on Monday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the law, the Clean Water Act, is also likely to lead to new regulatory battles, increased litigation by property owners and a push for new legislation.

With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled the outcome in a solitary opinion.

Justice Kennedy said that to come within federal protection under a proper interpretation of the Clean Water Act, a wetland needs to have a "significant nexus" to a body of water that is actually navigable.

He then made clear, in his 30-page opinion, that whether such a relationship existed in any specific case was largely a technical and scientific judgment on which courts should defer to the federal regulators. The four parcels of land at issue in the case, all in Michigan, were likely to meet the definition, he said.

Environmental advocacy groups reacted to the decision, which sends the cases back to an appeals court, as if they had dodged a bullet, which in many respects they had. An opinion for four justices, written by Justice Antonin Scalia, would have stripped protection from many areas that federal regulators have treated as wetlands under the 1972 law.

Justice Scalia's opinion, joined by Chief Justice John G. Roberts Jr. and by Justices Clarence Thomas and Samuel A. Alito Jr., said the Army Corps of Engineers had stretched its authority under the Clean Water Act "beyond parody" by regulating land that contained nothing but storm sewers, drainage ditches and "dry arroyos in the middle of the desert."

He said the agency had trampled on state authority by exercising a "scope of discretion that would befit a local zoning board."

The only wetlands properly subject to federal jurisdiction, Justice Scalia said, are those "with a continuous surface connection" to actual waterways, "so that there is no clear demarcation between 'waters' and wetlands."

The waters to which the wetlands must be adjacent, he continued, are only those that are "relatively permanent, standing or flowing." These are the only bodies of water that come within the statute's reference to "the waters of the United States," he said.

On the other side was Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Accusing the Scalia group of "antagonism to environmentalism," Justice Stevens said the Scalia opinion "needlessly jeopardizes the quality of our waters."

Further, Justice Stevens said, the Scalia group "disregards the deference it owes the executive" as well as "its own obligation to interpret laws rather than to make them."

This, of course, was a sly reference to the slogan often heard in connection with conservative nominations to the federal courts. In effect, Justice Stevens was accusing the Scalia group of judicial activism.

Here is an interesting observation from the end of the Greenhouse piece:
Given the structure of the principal opinions, including their relative length and tone, it is possible that Justice Stevens had initially controlled the case and, on the assumption that he had five votes on his side, had assigned it to Justice Kennedy, who then strayed somewhat from the more categorical view of the Stevens four. Although he speaks only for himself, his opinion reads like a majority opinion, while Justice Scalia's opinion reads like a dissent.
[More] Here is Charles Lane's coverage in the Washington Post. A quote:
The Supreme Court ruled yesterday that new limits could be placed on the federal government's power to enforce the 34-year-old Clean Water Act, but a set of opinions handed down by the justices did little to define what those limits might be.

The splintered decision was the clearest sign yet that the court's long-standing ideological divisions have not disappeared with the addition of two conservative justices. It also underscored that, perhaps more than ever, forming a majority in significant cases depends on winning the vote of a single justice -- moderate conservative Anthony M. Kennedy. * * *

The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.

Instead, unless Congress amends the law or federal regulators change their rules, the likely outcome is more litigation in lower courts, with property owners, U.S. agencies and federal judges trying to figure out how to satisfy the standards sketched in Kennedy's solo opinion.

Posted by Marcia Oddi on June 20, 2006 07:19 AM
Posted to Environment | General Law Related