WASHINGTON – The Supreme Court yesterday came close to rolling back one of the country's fundamental environmental laws, issuing a fractured decision that, while likely to preserve vigorous federal enforcement of the Clean Water Act, is also likely to lead to regulatory battles, increased litigation by property owners and a push for new legislation.
A five-justice conservative majority agreed that the Army Corps of Engineers, the lead federal agency on wetlands regulation, had exceeded its authority when it denied two Michigan developers permits to build on wetlands. The court said the Corps had gone beyond the 1972 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 Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito arguing for an across-the-board reduction in the Corps' right to block development that would pollute the nation's waters. But moderate Justice Anthony M. Kennedy rejected that view and called for a case-by-case approach.
Justice John Paul Stevens, in a dissenting opinion joined by other liberal Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, argued for retaining the broad definition of wetlands used by the Army Corps.
The ruling in twin cases yesterday – Rapanos vs. U.S. and Carabell vs. Army Corps of Engineers – sent the cases back to lower courts for new hearings.
The ruling may have less impact in California than in other parts of the nation, said William L. Rukeyser, spokesman for the Sacramento-based State Water Resources Control Board.
“California's landmark water quality law, the Porter-Cologne Water Quality Control Act, has given the state a structure of protection that is not entirely dependent on federal law or federal court decisions,” Rukeyser said.
For example, lagoons, sloughs and other wetlands in California's coastal zone won't be affected because they fall under state regulations, said John Dixon, an ecologist for the state Coastal Commission.
In other actions yesterday, the justices:
Decided, by a 6-3 vote, that California parolees can be searched without cause by police as a condition of their release from prison.
Allowed prosecutors to use victims' statements to 911 operators or police during emergencies even if those victims don't testify in court, ruling 9-0 and 8-1 in two cases.
Agreed to hear a second Bush administration appeal that seeks to reinstate a federal ban on what opponents call partial-birth abortion.
Refused to block part of the six-month-old Medicare prescription drug program, a defeat for states that claim they may get stuck with the bill.
Rejected an appeal from Holocaust survivors in the United States who claim they have been cheated out of a fair share of a $1.25 billion settlement over looted assets.
The Washington Post, Boston Globe, New York Times News Service, Associated Press and Union-Tribune staff writer Terry Rodgers contributed to this report.
