By Charles Lane
Washington Post Staff Writer
Tuesday,
June 20, 2006; A01
The Supreme Court ruled yesterday that new limits could be placed on the federal government's power to enforce the 34-year-old Clean Water Act, but a set of opinions handed down by the justices did little to define what those limits might be.
The splintered decision was the clearest sign yet that the court's long-standing ideological divisions have not disappeared with the addition of two conservative justices. It also underscored that, perhaps more than ever, forming a majority in significant cases depends on winning the vote of a single justice -- moderate conservative Anthony M. Kennedy.
In yesterday's ruling, a five-justice majority agreed that the Army Corps of Engineers, the lead federal agency on wetlands regulation, exceeded its authority when it denied two Michigan developers permits to build on wetlands. The court said the Corps had gone beyond the Clean Water Act by making landowners obtain permits to dump rocks and dirt not only in marshes directly next to lakes and rivers but also in areas linked to larger bodies of water only through a network of ditches and drains.
But there was no clear majority as to where the Corps should have drawn the line, with a four-justice plurality made up of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. arguing for an across-the-board reduction in the Corps' regulatory role but Kennedy rejecting that view and calling for a case-by-case approach.
The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.
Instead, unless Congress amends the law or federal regulators change their rules, the likely outcome is more litigation in lower courts, with property owners, U.S. agencies and federal judges trying to figure out how to satisfy the standards sketched in Kennedy's solo opinion.
"The practical effect is that some bright-line rules that have been applied for decades haven't been thrown out . . . but have had a significant cloud set over them by Justice Kennedy," said Richard J. Lazarus, a professor of environmental law at Georgetown University.
The key issue in the twin cases decided yesterday, Rapanos v. U.S. , No. 04-1034, and Carabell v. Army Corps of Engineers , No. 04-1384, was the meaning of a single phrase in the Clean Water Act.
The landmark 1972 environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that term to include not only large lakes and rivers but also their smaller tributaries, including some ditches or stream beds that are dry for all or most of the year and wetlands near those tributaries.
The Bush administration, backed by environmental organizations and more than 30 state governments, told the court that any narrower interpretation would cripple the Clean Water Act.
But property owners, backed by home builders, developers, farmers, ranchers and some water districts from the arid West, say that the Army Corps' view has federalized every drop of water in the country, putting Washington in charge of development miles away from any recognizably navigable waters.
The Michigan properties at issue included the Rapanos family's three parcels, of which one is close to the Pine River, a tributary of Lake Huron, and two are wetlands that drain into creeks that drain into two other rivers that flow into navigable waters. June Carabell's 19 acres are about a mile from Lake St. Clair but are connected to it by a network of man-made ditches.
Two recent Supreme Court rulings pointed in different directions. In 1985, the court ruled that the federal government could regulate wetlands "adjacent" to navigable waters. But in 2001 it ruled that the federal government could not control waste dumping in isolated water-filled depressions in Illinois. Though the Corps said it had jurisdiction over the ponds because migratory birds flocked there, the court ruled they lacked a "significant nexus" to navigable waters.
In an opinion for the four-justice plurality yesterday, Scalia wrote of "the immense expansion of federal regulation of land use that has occurred under the Clean Water Act" and argued that the only way to cut back on it was to restore a common-sense definition of navigable waters as "relatively permanent standing or flowing bodies of water."
But Kennedy disagreed. Borrowing from the court's 2001 opinion, he suggested that the proper definition could include temporary channels of water, as long as they had a "significant nexus" to larger bodies. They must "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable,' " he wrote. Those wetlands with only a "speculative or insubstantial" connection would not qualify, Kennedy noted.
Both sides in the debate rushed to put the most favorable interpretation on Kennedy's opinion.
M. Reed Hopper, principal attorney for the Pacific Legal Foundation, who represented the Michigan property owners in the case, said it was a "great win for the regulated public" because it "specifically rejected the idea that the Army Corps . . . could regulate no matter how insignificant" the connection to navigable waters.
But Timothy Searchinger, a senior attorney with Environmental Defense, said in a prepared statement: "Justice Kennedy agrees that wetlands in the Upper Midwest can protect against vast water quality problems in the Gulf of Mexico. What his opinion seeks is that the U.S. Army Corps of Engineers set forth that proof. The proof is there, and when it is presented, I am confident that the reach of the Clean Water Act will change very little."
Lazarus likened the splintered decision to the 1978 Bakke case, in which four justices voted to uphold a minority admissions quota at a California medical school, four voted to strike it down, and a ninth justice, Lewis F. Powell Jr., voted to strike it down but suggested an alternative legal basis, diversity, for other race-conscious admissions policies.
The status of Powell's opinion was debated over the next 25 years, until a majority of the Supreme Court finally embraced it in a 2003 case.
That assessment of yesterday's result seemed to be shared by some members of the court.
In a brief concurring opinion, Roberts alluded to the affirmative-action cases and noted that it was "unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act." He added: "Lower courts and regulated entities will now have to feel their way on a case-by-case basis."
And Justice John Paul Stevens, in a dissenting opinion joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, argued that Kennedy's approach will not cut back on the scope of the Clean Water Act "in the long run." But, in the meantime, it "will have the effect of creating additional work for all concerned parties," Stevens wrote.
Stevens argued that the court should have accepted the Army Corps of Engineers' view of its own authority, as both Congress and the executive branch had acquiesced to it for decades.
