New court ready to tackle property
With Roberts as chief,
wetlands and pollution at heart of case
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 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, such as Hurricane
Katrina-decimated parts of Louisiana and
Mississippi, and even land that is not adjacent to
The Army Corps of Engineers regulates work on
wetlands, which are home to many plants and
“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
The Bush administration had urged the court to
stay on the sidelines.
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 2001, 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
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
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.
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 20 miles from a
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
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