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Court Splits Over Wetlands
Protections
By LINDA
GREENHOUSE
Published: June 19, 2006 The New York Times
WASHINGTON, June 19 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.
The case, which was argued in February and was the oldest
undecided case on the court's docket, was clearly the subject of a major
internal battle that undercut any image of good fellowship and unanimity on the
Roberts court.
The chief justice himself wrote a brief concurring opinion,
noting that "it is unfortunate that no opinion commands a majority of the
court." He added: "What is unusual in this instance, perhaps, is how readily
the situation could have been avoided."
It was not clear whether he was aiming this comment at
Justice Kennedy or at the Army Corps of Engineers, which he said had failed to
respond properly to a Supreme Court decision five years ago that rejected
federal jurisdiction under the Clean Water Act over isolated ponds visited by
migratory birds.
The chief justice noted that the Army Corps had embarked
after that decision on issuing new, more limited regulations, but had abandoned
the effort. "Rather than refining its view of its authority in light of our
decision," he said, "the Corps chose to adhere to its essentially boundless
view of the scope of its power." He concluded: "The upshot today is another
defeat for the agency."
Given Justice Kennedy's refusal to go along, the extent of
that defeat was far from certain. At the least, the Army Corps of Engineers may
now feel impelled to embark on a new rulemaking process, leading to a
regulation that would incorporate Justice Kennedy's "significant nexus" test.
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 in
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 current standard used by the Corps, he said, was too
open-ended in permitting regulation of remote drains, ditches and streams that
did not affect "the integrity of an aquatic system."
The impact of this approach will become more clear when the
appeals court, the United States Court of Appeals for the Sixth Circuit, in
Cincinnati, revisits the two decisions that the Supreme Court vacated. With
Justice Kennedy agreeing that the appeals court needed to take a fresh look at
the cases, there were five votes for a judgment to "vacate and remand."
But as Justice Stevens pointed out, one "unusual feature" of
the judgment was that there were not five votes for the standard that the
appeals court should apply. The judgments should be reinstated as long as the
appeals court finds that Justice Kennedy's test is met, disregarding the test
proposed by Justice Scalia, Justice Stevens said.
The appeals court, in two separate cases, ruled against
Michigan property owners in their battles with federal regulators. In the lead
case, Rapanos v. United States, No. 04-1034, John A. Rapanos, after being
informed that three parcels he wanted to develop probably contained regulated
wetlands, cleared and filled the land without obtaining a Clean Water Act
permit.
The government brought criminal charges against Mr. Rapanos.
He was convicted, and the Supreme Court denied review of his case in 2004. The
case the court decided on Monday grew out of his appeal in a civil case the
government brought against him, in which he faces millions of dollars in fines.
His property is as much as 20 miles away from water that is
navigable in the traditional sense. But the parcels are within the drainage
systems of Lake Huron and two navigable rivers.
In the second case, Carabell v. United States Army Corps of
Engineers, No. 04-1034, the Army Corps denied a permit to a couple who wanted
to fill part of their property in order to develop condominiums.
In both cases, the property owners challenged the
jurisdiction of the Army Corps both under the Clean Water Act and under the
Constitution, arguing that if Congress had conferred such broad jurisdiction in
the Clean Water Act, it exceeded its authority under the Commerce Clause.
Justice Scalia's opinion, without directly endorsing the
constitutional attack, said the agency's interpretation of its authority
"stretches the outer limits of Congress's commerce power." Justice Kennedy,
however, said that wetlands as defined by his test "raise no serious
constitutional or federalism difficulty."
However the case unfolds from here, it was plain that
something went awry in the court's handling of its most high-profile
environmental case in years.
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.
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