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Wednesday, June 21, 2006

Wetlands decision mired in muck, quagmire, goo

Photo Courtesy of

Breathe a sigh of globally-warmed air, America. Your lakes and streams have a chance at holding off run-off and groundwater pollution for at least one more year.

An alleged wetland
Photo Courtesy of N.C. State U., Dept. of Soil Science /

Or at least, I think that’s the case.

The U.S. Supreme Court divided three ways on Monday, with a plurality of justices agreeing that the portions of the Clean Water Act providing federal authority to regulate wetlands are Constitutional. What exactly was held in the case, Rapanos v. United States, is less cause for celebration among environmentalists, but at the very least, the position espoused by Justice Antonin Scalia in
his opinion does not represent the latest take on the law.

John Rapanos: The guy who wants to kill all baby kittens, or at least dredge and fill all wetlands in Michigan so he can build Chuck E. Cheeses for suburbanites everywhere.
Photo Courtesy of the Traverse City Record Eagle /

Quick note about how fractured this case was. Scalia's opinion reads like a dissent and commands only four votes, but it's identified as the majority opinion by the Court. Similarly, the
dissent drafted by Justice John Paul Stevens reads more like a concurrence, whereas the 31-page concurrence written by Justice Anthony J. Kennedy achieves the result of typically afforded to the majority opinion – i.e. defining the law.

Does this make any sense? Try these guys:

Here's the NY Times'
Linda Greenhouse's take on it, and the accompanying editorial from her colleagues down the hall. The uber-goddess of the Supreme Court beat, NPR's Nina Totenberg, provides this audio report. The Washington Post's Charles Lane weighed-in. So did the FREEP's David Ashenfelter, who closely monitored the Michigan-based Rapanos case from beginning to end. The Seattle Times wasted no time pushing the issue to the Editorial page, challenging Congress to clear up the ambiguous language. The LA Times' David G. Savage says the same thing everyone else said, only with different commentators explaining what the opinions supposedly held. The Wall Street Journal said some things, too, but I can't link it beyond the "Free Preview" teaser because they charge money and stuff.

Oh, and for a lawyerly perspective, the ABA Journal folks agree that the opinion further muddies the question from what the Supreme Court said in 2001.

SCOTUSblog provided a forum for several laws professors to weigh in, including Georgetown's Richard Lazarus, Emory's William Buzbee, and Chapman's John Eastman.

Incidentally, as SCOTUSblog notes
here, Georgetown U. Law School hosted a panel discussion on the result Tuesday. Look for C-Span to broadcast the discussion at some point soon.

Weird Art about Property Rights

Image Courtesy of

Representing the outraged right,
the Cato Institute's Mark Moller calls the Scalia dissent, "a significant victory for federalism," clarifying:
It rejects environmental regulators’ “hydrological connection” test for federal jurisdiction over wetlands and, furthermore, requires that regulated wetlands have a continuous, standing surface connection to navigable water. It recognizes, moreover, that the Clean Water Act is at the periphery of federal commerce power
Unfortunately, the Chief Justice’s and Justice Kennedy’s concurring opinions muddy the water (bad puns not intended).

George Mason University law professor Ilya Somin wrote at
the Volokh Conspiracy that the case yields:
Much Ado About Very Little: Some observers hoped and others feared that the Rapanos case might rein in the virtually limitless theory of federal regulatory power that the Supreme Court embraced last year in Gonzales v. Raich. My preliminary reading of the Rapanos opinions suggests that such hopes and fears have turned out to be groundless. The Rapanos majority does not impose any constitutional limits on federal power. Nor does it increase protection for federalism provided by rules of statutory interpretation.

The NY Times' Greenhouse explains:
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.

The Washington Post's Lane views the result more broadly, noting:
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.

That's them – the Army Corps of Engineers – getting in shape to issue permits.
Image courtesy of the Army Corps of Engineers

Congress authorized the Army Corps of Engineers to regulate, through a permitting process, dredging and filling of wetlands under the Clean Water Act. As the Post's Lane explains:
The landmark 1972 environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that term to include not only large lakes and rivers but also their smaller tributaries, including some ditches or stream beds that are dry for all or most of the year and wetlands near those tributaries.
The Rapanos decision leaves some question as to the long term viability of the Corps' ability to continue demanding permit applications for dredging and filling of wetlands that have a less-obvious hydrological connection to lakes, rivers, and streams.

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.

Greenhouse provides that:
Under that test, regulators need not show that a wetland is adjacent to, or connected with, a navigable body of water. Rather, it is sufficient to show that it is adjacent to a tributary that itself flows into such waters.

Justice Kennedy said the Corps needed to be more specific i defining the tributaries that count for this purpose. He said it needed to identify those "categories of tributaries" that were "significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters."

The significant nexus test is not new, but reaction to it in the Rapanos decision appears to expect more than the tests' debut in the 2001 opinion, Solid Waste Authority of Northern Cook County v. Army Corps of Engineers. Notes Professor Buzbee, "While I don’t agree that any such test has existed, at least in the sense of requiring case-by-case proof of a strong connection, [Kennedy's] formulation of the test shares a fair bit of ground with the dissenters, the regulators below, and longstanding Army Corps and EPA views of how and why waters are protected."

The two cases – Rapanos and SWANCC are the deepest penetration of the New Federalism movement into the field of Environmental law. The Scalia view, which should make even devout New Federalists blush, rejected all watershed science, urging a limit to Army Corps regulation at wetlands that have "continuous surface connection" to "navigable in fact" waterways, like lakes and rivers, that are "relatively permanent, standing or flowing." Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito joined the Scalia dissent.

Of note, NPR's Elizabeth Shogren gave
this report on the impact of SWANCC five years later. SWANCC handcuffed the Corps and basically declared open season on all marshes and swamps that are "isolated wetlands," or not effectively shown by the Corps to be hydrologically connected to lakes, rivers, and streams. It left that task to states, which have demonstrated spotty enthusiasm for undertaking such regulation and even spottier success in blocking dredging and filling of wetlands non connected to "navigable waters."

The opinions displayed an interesting flip in roles generally identified by media in recent decades, with Justice Stevens' four-justice concurring opinion accusing the Scalia dissent of "disregard[ing] the deference it owes the executive" as well as "its own obligation to interpret laws rather than to make them." The NY Times' Greenhouse observed this as "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."

Greenhouse notes, "… it was plain that something went awry in the court's handling of its most high-profile environmental case in years."

The Post's Lane reported another interesting take, from Georgetown University environmental law professor Richard J. Lazarus:
Lazarus likened the splintered decision to the 1978 Bakke case, in which four justices voted to uphold a minority admissions quota at a California medical school, four voted to strike it down, and a ninth justice, Lewis F. Powell Jr., voted to strike it down but suggested an alternative legal basis,
diversity, for other race-conscious admissions policies.

The status of Powell's opinion was debated over the next 25 years, until a majority of the
Supreme Court finally embraced it in a 2003 case.

Swell. I guess that means we wait 20 years before this clears up, unless Congress clears it up first ... which means we wait 20 years.


Anonymous Conservation Law Foundation said...

The New England-based Conservation Law Foundation recently composed this thought on the subject:

Supreme Court Ruling Hurts Wetlands Protection
CLF Concerned about Ecological Resources

In a decision that could have significant ramifications in New England and nationally, the Supreme Court handed down a fractured decision last week clouding decisions regarding the scope of the Clean Water Act and potentially leaving wetlands more vulnerable to development. For over 30 years the Army Corps of Engineers has interpreted the landmark environment law to regulate development activities that affect even the smallest streams and wetlands. A plurality of the Court’s justices issued opinions that reject the Corps’ long-standing rules.

The Supreme Court cases focused on two Michigan landowners attempting to build a shopping mall and condominium complex on wetlands. The recent decision significantly modifies the regulatory test for Clean Water Act jurisdiction over dredging and filling of wetlands and intermittent streams, requiring a case-by-case analysis of whether or not they fall under the purview of the Clean Water Act. Both cases will return to a lower appeals court for further review and suggested limitations on the Corps’ jurisdiction.

“The Court’s decision may be very bad for New England,” Christopher Kilian, Director of CLF’s Clean Water and Healthy Forests program, said. “Thousands of acres of sensitive wetlands are at risk for development, which would ultimately take a great toll on our water supply and ecosystems if unchecked.”

The court decided the case with a 5-4 vote, with Justice Kennedy writing a separate opinion and arguing against Justice Scalia’s attempt to dramatically narrow the scope of the Clean Water Act to exclude all waters that do not have a direct surface water connection to a navigable waterway. Kennedy proposed that in order for a wetland to qualify for federal protection under the Clean Water Act it must have “significant nexus” to a navigable body of water. Kennedy also urged the Corps to establish more specific regulations determining waterways eligibility for protection in order to avoid continuing the current case-by-case approach.

9:43 AM


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