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Public Radio's Environmental News Magazine (follow us on Google News)

A Supreme Look at the Swamp

Air Date: Week of

The US Supreme Court is split on whether the Clean Water Act protects all wetlands. Living On Earth's Jeff Young tells us what's next for wetlands protection and what the decision tells us about the court's newest members.


CURWOOD: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts, this is Living on Earth. I’m Steve Curwood.

CURWOOD: The US Supreme Court waded into the swampy territory of wetlands protection and came up with a decision that really didn’t decide much. It was the first major environmental case for the court’s new members, Bush appointees John Roberts and Sam Alito.

The issue: the reach of a landmark environmental law, the Clean Water Act. The potential stakes: protection for tens of millions of acres of wetlands and small streams. The ruling raised as many questions as it resolved.

Living on Earth’s Jeff Young joins us from Washington, where he’s been sorting through this opinion and finding out what’s next for America’s wetlands. Jeff, remind us of the particulars of the case here.

YOUNG: Two property owners in Michigan wanted to fill in some wetlands for construction. The wetlands were not close to or obviously connected to any river or lake. So the landowners argued that they were not subject to regulation under the Clean Water Act. The government said, oh yes they are: any hydrological connection between wetlands and a larger waterway puts those wetlands under the act’s protection.

The Justices were very split on this. Four said the government got it right and these regulations are okay; four said the government agency went beyond its authority, the regulation is wrong.

CURWOOD: Okay, so the math is four and four makes eight. What about justice number nine?

YOUNG: Number nine was justice Anthony Kennedy, and he was in the middle, which makes his separate opinion on this the most important. He said, yes, the government exceeded its authority here. But he disagreed with the reasoning that the other justices used and laid out his own attempt at some sort of middle ground, a test that lower courts should follow.

CURWOOD: And what exactly is that test?

YOUNG: Justice Kennedy says the regulators must show that there is – quoting here – a significant nexus between the wetland in question and larger waterways which are clearly regulated.

CURWOOD: Significant nexus. Sounds like the name of a jazz band or something. What does it mean?

YOUNG: Good question. In fact, you might call this the 100 million acre question – roughly, the wetlands the country has left. Justice Kennedy says there has to be evidence that polluting or filling in the wetland would have a downstream effect. But he doesn’t really define the nexus, so it’s gonna be decided case by case.

CURWOOD: So meantime, where does that leave the landowners who brought the suit?

YOUNG: Well they won, but they didn’t win very much, other than another shot in the lower court. Reed Hopper is an attorney with a property rights group called The Pacific Legal Foundation. And he argued this case for one of the landowners, John Rapanos.

HOPPER: Perhaps we didn’t get what we hoped for – which was a clear rule on the scope of federal jurisdiction under the Clean Water Act. But Mr. Rapanos did get what he asked for: a determination that the agency has some limits and cannot regulate everywhere water flows.

YOUNG: So Hopper obviously had wanted a more sweeping ruling. Now he says landowners will have to wait and see how things play out in the near future as more of these cases go to court.

CURWOOD: So Jeff, let’s look ahead here. Over the longer term, what do you think will happen?

YOUNG: I think eventually there will be some effort to clarify this. It could come from Congress, it could come from the Army Corps of Engineers – the Corps has responsibility for this section of the Clean Water Act, and they might try to write new rules, but the last time the court tried to do this, it was very controversial they dropped it.

CURWOOD: Now you mentioned Congress. What’s brewing there, if anything?

YOUNG: Representative James Oberstar, a Democrat from Minnesota, he already has a bill that would make it clear that the act does apply to these kinds of wetlands. Oberstar’s been on the Hill thirty years as a congressman. Even before that he was a staffer, back in the early 70’s when the Clean Water Act was drafted. He was there. He says Congress fully realized the importance of wetlands, and meant to protect them.

OBERSTAR: If the court’s decision is allowed to stand, the result will be more pollution, more fish kills, more beach closings, and more flooding. Because wetlands, as all of us saw in the destruction of hurricane Katrina, are the shock troops of nature.

CURWOOD: So Jeff, what are the chances for Oberstar’s bill?

YOUNG: He has a lot of support, something like 160 co-sponsors, and there’s a companion bill already introduced in the Senate. But several members of the Republican leadership really want to move in the other direction, toward less regulation. So this is very divisive for congress. I’d say we’ll get some debate but probably not a new law, especially not in an election year.

CURWOOD: Now, of course there’s another reason this case was so closely watched, and that's because it was the debut environmental decision for the new members of the court. We have Sam Alito replacing justice Sandra Day O’Connor, and John Roberts replacing Chief Justice Rehnquist. What did we learn about these new justices?

YOUNG: Both joined on to Justice Antonin Scalia’s opinion here. Scalia leads the conservative right of the court and nearly always gets the vote of Justice Clarence Thomas. And Scalia is a very colorful, passionate writer, and this was a particularly scathing opinion that he’s written here. He calls the regulatory agency "despots" and calls their view of their authority "beyond parody."

Georgetown law school hosted a discussion with some legal experts on this opinion a few days ago, and Professor Richard Lazarus said something pretty interesting, I thought. He said even by Scalia's standards, this opinion was pretty extreme.

LAZARUS: And to have the two new justices sign on to it I think sends out some serious concerns and warning signs about where the court might be going. I don’t think O’Connor would have signed that opinion. I’m not even sure Rhenquist would have necessarily signed on. If the two new justices are really on that bandwagon, I’m surprised they joined it.

YOUNG: So a note of caution there from a widely recognized expert on environmental law, that this court may very well be more willing to limit the reach of environmental law.

CURWOOD: But even with the justices Roberts and Alito joining in, Scalia did not get a clear majority here.

YOUNG: Right. We have a narrowly – and I think fair to say, somewhat bitterly – divided court on these issues, with Justice Kennedy stepping into that role of the swing vote. And that may very well be the new dynamic for environmental cases that come before this court, which would also make them real nail-biters – very tough to predict.

CURWOOD: Jeff Young is Living on Earth’s Washington correspondent. Thanks Jeff.

YOUNG: You’re welcome.



Pacific Legal Foundation

EarthJustice press release

Environmental Integrity Project press release


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