Under New Leadership

By Gina Holland

ASSOCIATED PRESS

2:46 p.m. October 11, 2005

WASHINGTON – The Supreme Court set the stage Tuesday for what could be a landmark ruling on government authority to regulate wetlands and control pollution, giving new Chief Justice John Roberts his first chance to limit federal regulation of property rights.

The justices agreed to take up claims that regulators have gone too far by restricting development of property that is miles away from any river or waterway.

With more than 100 million acres of wetlands in the contiguous United States, a total as big as California, the stakes are high, the justices were told.

The outcome could have implications for government authority in regulating construction in obviously environmentally sensitive areas, like Hurricane Katrina-decimated parts of Louisiana and Mississippi, and even land that is not adjacent to water.

The Army Corps of Engineers regulates work on wetlands, which are home to many plants and animals.

"They define wetlands so broadly that even dry desert areas of Arizona are being called wetlands," said Paul Kamenar, a lawyer with the Washington Legal Foundation, one of the conservative groups that called on the court to intervene.

The Bush administration had urged the court to stay on the sidelines.

The Government Accountability Office reported Tuesday the corps generally declines to regulate small, isolated wetlands within a single state, based on the administration's interpretation of a 2001 Supreme Court ruling. The corps also fails to document a reason for its decisions up to half the time, said the GAO, Congress' investigative arm.

"The corps is not following the law, and drinking water supplies, wildlife habitat and flood protection could be lost as a result," said Nancy Stoner, director of the Natural Resources Defense Council's clean water project.

Environmental cases have been divisive at the court. In 2002, justices deadlocked 4-4 in a case that asked whether farmers should have more freedom to work in wetlands. In the 2001 case, the court split 5-4 in a ruling that limited the scope of government protection of wetlands, but the decision did not go as far as environmentalists feared.

Environmentalists have been worried about how Roberts will vote in such cases.

As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad.

The 1972 clean water law involved in the Supreme Court cases draws much of its regulatory authority from the part of the Constitution that gives Congress power to regulate commerce between the states. The same legal reasoning underpins federal environmental and civil rights protections, so the outcome of these cases could affect more than land regulations.

Jonathan Cannon, former top lawyer at the Environmental Protection Agency who now teaches law at the University of Virginia, said a ruling that limits government power could jeopardize other environmental laws that protect endangered species and drinking water.

More immediately, it would affect areas recovering from Katrina, said Robin Craig, an expert on the Clean Water Act at Indiana University School of Law. "With swampy areas, you could see this same issue arising. Are these rebuilding efforts going to have to go through Army Corps of Engineers permitting?"

Bush administration Supreme Court lawyer Paul Clement said the government has long-standing power to protect waterways, even if that means limits on pollution on nearby land.

Justices will review a pair of cases involving projects in Michigan, one that is one mile away from a lake, and a second that is some 20 miles from a navigable river.

Because some previous environmental appeals have been so close, the outcome of these cases could rest with the replacement for Justice Sandra Day O'Connor, who is retiring. She is serving until her successor is confirmed. Arguments in the cases will be scheduled next year.

John A. Rapanos has been feuding with regulators since the late 1980s. He was convicted of violating the Clean Water Act for filling his wetlands with sand to make the land ready for development, and he also lost a civil suit. The second case involves the development of a condominium in Macomb County, Mich. The government contends the work could pollute nearby Lake St. Clair, which connects Lake Huron and Lake Erie.

Justices also agreed to hear a third clean water case. It was filed by the owner of hydroelectric dam projects on the Presumpscot River in Maine which provide electricity for the company's paper mill. Lawyers for S.D. Warren Co. argue that the company should not be required to get permits just because water flows through the dams.

The cases are Rapanos v. United States, 04-1034, Carabell v. Army Corps of Engineers, 04-1384, and S.D. Warren Co. v. ME Board of Environmental Protection, 04-1527.