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Clean Water Act ruling illustrates court's shift

WASHINGTON -- The Supreme Court ruled yesterday that environmental regulators may have gone too far when they applied the Clean Water Act to wetlands, rather than just lakes and rivers, delivering a divided opinion that illustrated the court's rightward shift since President Bush's two recent nominations.

The 5-to-4 decision could limit the reach of the Clean Water Act, a landmark 1972 law that gives the Army Corps of Engineers the right to block development that would pollute the nation's waters. Also yesterday, the court announced that it would hear a case next fall involving certain late-term abortion procedures.

As in several other important decisions this term, yesterday's environmental case was decided by a bloc of the four most conservative members of the court -- including Bush's nominees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- who were joined by a conservative-leaning centrist, Justice Anthony M. Kennedy.

``This is what everybody expected when [Justice Sandra Day] O'Connor left the court," said Harvard law professor Richard Fallon. ``There have been no surprises this term, including no surprises about the way that people thought that Roberts and Alito would push the court to the right, making Kennedy the center justice."

The Clean Water Act case -- the most highly anticipated environmental ruling of the year -- is a potential benchmark in the court's rightward tilt. Christopher Kilian , a senior lawyer at the Conservation Law Foundation, a New England environmental advocacy organization, said the court's ruling could open the door for developers to challenge decisions in which provisions of the Clean Water Act were applied to wetlands.

``The upshot of the court's decision is that thousands of miles of streams in New England and hundreds of thousands of acres of wetlands throughout the region are now at greater risk of being filled-in, bulldozed, or developed," he said.

The Supreme Court was long composed of three solidly conservative justices and four liberals, while O'Connor and Kennedy served as swing votes between the two factions. After Chief Justice William H. Rehnquist died last summer and O'Connor retired, they were replaced by Roberts and Alito -- leaving Kennedy, who is more conservative than O'Connor, as the key decision-maker.

``We have a 4-1-4 court, with Justice Kennedy sitting in the middle," said Barry Friedman, a New York University law professor.

Even in the current term -- which has been relatively low-key, with no major free speech case, no major religion case, and an abortion case that was sent back to lower courts for further review -- the court's rightward tilt has left its mark in several 5-to-4 decisions advancing conservative issues.

Last month, for example, the court held 5 to 4 that the First Amendment does not protect government employees from retaliation if they act as whistleblowers and expose government wrongdoing. Kennedy wrote the opinion, joined by Roberts, Alito, Antonin Scalia, and Clarence Thomas.

And last week, the court held, 5 to 4, that prosecutors in a criminal trial can use evidence obtained when police search a home without first knocking on the door. Kennedy and the conservatives again formed the majority, while the four liberals -- John Paul Stevens , Ruth Bader Ginsburg , David H. Souter , and Stephen G. Breyer -- dissented.

Still, although the court is tilting to the right, scholars said, Kennedy has voted with liberals on the death penalty and in some abortion rights cases

In yesterday's Clean Water Act cases, while the four solid conservatives sought to sharply restrict the scope of the Clean Water Act, Kennedy wrote a separate opinion that softened the impact of the ruling.

The cases involved two Michigan landowners who wanted to develop a shopping mall and a condominium complex on wetlands. One of the sites is connected by ditches to distant waterways. The other site is blocked from flowing into a lake or stream because of a man-made dike.

Citing the Clean Water Act, the Army Corps of Engineers moved to block construction at both sites. The landowners sued, arguing that the Corps had gone beyond the powers in the Clean Water Act because neither site abutted a body of water. A lower court sided with the Corps.

Yesterday, a majority of the Supreme Court -- the bloc of solid conservatives, with Kennedy adding a fifth vote -- sent the cases back for new hearings.

Scalia, writing for the four conservatives, tried to sharply limit the reach of the Clean Water Act, accusing the Corps of having ``stretched the term `waters of the United States' beyond parody" by applying it to man-made drainage ditches, streambeds that are dry part of the year, and ``wet meadows" that are distant from rivers and lakes.

``The plain language of the statute simply does not authorize this `land is waters' approach to federal jurisdiction," Scalia wrote.

Kennedy agreed that the lower courts should take a second look at whether the Clean Water Act covers the Michigan sites, suggesting they may not have a ``significant nexus" to lakes and rivers. But Kennedy also said Scalia and the conservatives were wrong to enact an absolute ban on using the Clean Water Act to preserve wetlands.

``The plurality's overall tone and approach . . . seems unduly dismissive of the interests asserted by [government regulators]," Kennedy wrote. ``Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular."

The fractured and confusing outcome of the case drew cautious comments from activists on both sides of the issue, with each side claiming a partial victory.

Mark Moller of the Cato Institute, a libertarian think-tank that filed a friend-of-the-court brief on behalf of the property owners, said the case showed that five justices held that the Clean Water Act has strict limits. Otherwise, he said, the Army Corps of Engineers could become ``a big land use zoning board" for the whole country.

``The Army Corps of Engineers said basically that any land on which some water may trickle its way, on the surface or underground, to some navigable water is under federal control," Moller said. ``That could reach the desert or water that drains off your property through a gutter. There was no limit to federal authority under that theory."

But David Baron of Earthjustice , an environmentalist group that filed a friend-of-the-court brief on behalf of the Army Corps, said he was heartened that Kennedy did not endorse Scalia's more restrictive opinion.

``There is a majority rejecting this extreme view that Justice Scalia puts forth, that tries to limit the Clean Water Act only to continuously flowing streams," Baron said. ``That's a concept that has never been around before, and a majority of the justices plainly reject it."

Also yesterday, the court voted 6-3 that a police officer does not need a warrant to search a parolee because convicted criminals who have been let out of prison on parole have a lower expectation of privacy than ordinary people.

In the abortion matter, the court agreed to hear a second case over whether the Partial-Birth Abortion Act of 2003 is unconstitutional because it has no exception for a woman's health. Both cases raise the issue of whether the law is too vague.

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