Editorial: High and dry court
Wetlands ruling threatens Clean Water Act
- Editorial
Saturday, July 1, 2006
The Supreme Court's muddled 4-4-1 decision on the Clean Water Act and wetlands shows again the importance of elections.This court is one justice away from overturning 30 years of environmental law supported by both Republican and Democratic administrations.
Justice Antonin Scalia wrote one opinion, which was joined by Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts. That opinion shows absolutely no understanding of the role of wetlands in preventing water pollution and flooding in downstream states. It derisively refers to "swampy lands" and "transitory puddles." To these four, seasonal waters that dominate dry Western states, such as the Los Angeles River, shouldn't count as "waters of the United States." The four ignored all the scientific expertise presented, relying instead on definitions from a 1954 dictionary.
Why care about wetlands? For one thing, they act like giant sponges. During wet times, they help control downstream flooding and erosion by storing excess water. In times of drought, they slowly release water into streams and groundwater to recharge underground aquifers.
Wetlands also filter out sediment, pollutants and excess nutrients such as nitrates and phosphorus before water runs into our lakes, rivers and streams. In Nebraska, for example, wetlands in the Little Blue River watershed help purify drinking water for many downriver communities, including Kansas City.
Thirty-three states, including California, joined in a brief that said: "Because virtually every state is a downstream state, an overwhelming consensus exists among the states regarding the need for this continued federal protection." Downriver states cannot control the actions of their upriver neighbors; the federal government has to do that. Most states, including California, do not have independent programs protecting wetlands and rely on the state-federal partnership under the Clean Water Act to protect them. The states argued that "a patchwork system would require far more bureaucracy and undercut the efficient state-federal partnership currently in place."
So what happens now, since no opinion won a five-vote majority? This is where things get complicated.
Justice Anthony Kennedy's one-person opinion disagreed with the Scalia group on every point regarding the Clean Water Act and wetlands -- except one. He agreed with the four that the cases should be returned to the lower courts. So five votes send it back. Roberts suggested in a concurring opinion that the narrowest holding rules. That suggests that Kennedy's one-person opinion will guide the lower courts.
The cases before the court involved landowners who wanted to fill in wetlands to build shopping malls and condominiums. Kennedy said that before federal regulators step in to protect these areas, they must demonstrate a "significant nexus" between the wetlands in question and navigable waters. If the wetlands have an impact on the chemical, physical and biological integrity of downstream navigable waters, they can be regulated; otherwise not.
This is fine for now, but four justices have clearly signaled that they would end federal protection of wetlands under the Clean Water Act. Congress, of course, could reaffirm its intent to fully protect wetlands and other waters under the act. But the current majority in Congress is highly unlikely to do so.
Elections, as said, do matter.
http://www.sacbee.com/content/opinion/editorials/story/14273838p-15083826c.html
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