By Michael Doyle -- Bee Washington Bureau
Wednesday, February 22, 2006
WASHINGTON - The Supreme Court's two newest justices heard their first big environmental case Tuesday in a dispute that will shape how crucial waterways are preserved.
With everyone from homebuilders to duck hunters watching closely, the court's conservatives questioned whether the federal government goes too far in protecting the nation's remaining 100 million acres of wetlands. The court could choose to turn more of that job over to states, even though California and 31 other states insist it remains Uncle Sam's responsibility.
"The federal government is trying to take over the whole country," Michigan landowner developer John Rapanos said on the Supreme Court's steps Tuesday morning, "and if they do, we will all lose."
Represented by the Sacramento-based Pacific Legal Foundation, Rapanos is one of two Michigan property owners whose building plans ran afoul of the U.S. Army Corps of Engineers. Rapanos and landowner June Carabell say their respective properties are disconnected from the wetlands and waterways controlled by the corps.
The resulting lawsuits differ on some points but are now combined, giving the court a chance to decide whether small tributaries and isolated wetlands are covered by federal protections designed to protect the "waters of the United States."
Specifically, justices will decide whether the Clean Water Act extends to wetlands that aren't adjacent to a navigable waterway, or are not connected to one by the flow of water. It's a big question in California, home to about 450,000 acres of wetlands.
Tuesday marked the first Supreme Court outing for newly confirmed Justice Samuel Alito, although Alito asked only one question during the unusually long, 80-minute oral argument. But an energetic Chief Justice John Roberts, still in his first term, joined Justice Antonin Scalia in voicing pointed skepticism about the reach of federal regulations.
"At some point, you've got to say stop," Roberts said. "At some point, the definition of 'tributary' has to have an end."
Scalia was even more direct, scornfully accusing the Bush administration of overreaching.
"When there are nothing but puddles, isolated by a berm, I can't conceive of how you can possibly consider them a 'water of the United States,' " Scalia told Solicitor General Paul Clement.
But in a sign of a pending Supreme Court split in which Alito's vote will be crucial, Justices David Souter and Ruth Bader Ginsburg sounded much more sympathetic to the need for expansive federal wetlands protections.
"(Otherwise,) all you have to do is dump the pollutant upstream far away from the watershed and you get away scot-free," Souter said.
Environmentally precious and politically controversial, wetlands help soak up floods and host migrating birds, among other virtues. They are protected by the 1972 Clean Water Act, which empowers the U.S. Army Corps of Engineers to issue permits needed before filling the wetlands.
Nationwide, the Corps of Engineers rejects only about 3 percent of permit applications. The Sacramento district of the Corps of Engineers, covering most of the Sacramento and San Joaquin valleys, issued 3,000 permits in the last 18 months. Only one application was denied in the region, corps officials note.
Even so, Congress does not enjoy unlimited power. The Constitution's Commerce Clause limits the congressional reach to matters entangled with interstate commerce, which the Supreme Court has now spent more than 200 years defining.
Moreover, in a 2001 case arising out of Illinois, the Supreme Court ruled that the Army Corps of Engineers does not have power over wetlands that are "isolated" from navigable waterways. The court said in its 5-4 opinion that there must be a "significant nexus" connecting the wetlands with the navigable waterways. The new cases will help define what "significant nexus" means.
"Congress cannot regulate all tributaries," Pacific Legal Foundation attorney M. Reed Hopper, representing Rapanos, told the court. "The regulation of all tributaries raises significant constitutional issues."
Groups such as Ducks Unlimited and Northern California River Watch filed briefs supporting the government. Groups like the National Association of Home Builders and the Westlands Water District back the property owners who want to restrict federal authority.
The 32 states that side with the Corps of Engineers in this case - including California - worry about pollution flowing in from more lenient neighboring states.
"Maintaining consistency among water pollution programs throughout the nation is essential," California and the other states argued in their legal brief. "The Clean Water Act is key to attaining this relative parity, because it creates a federal 'floor' for water pollution control."
About the writer: The Bee's Michael Doyle can be reached at (202) 383-0006 or mdoyle@mcclatchydc.com.
http://www.sacbee.com/content/politics/story/14217626p-15043616c.html
This article is protected by copyright and should not be printed or distributed for anything except personal use.
The Sacramento Bee, 2100 Q St., P.O. Box 15779, Sacramento, CA 95852
Phone: (916) 321-1000
Copyright 2006 The Sacramento Bee