Au Revoir, Clean Water Act?

Just like that, the Supreme Court chips away at one of the foundations of this country’s Environmental Law.
Court Splits Over Wetlands Protections – New York Times

By DAVID STOUT. WASHINGTON, June 19 — The Supreme Court set the stage for a re-examination of the 1972 Clean Water Act, as it narrowly ruled today in favor of two Michigan property owners who have sought to develop tracts designated as wetlands.

By 5 to 4, the justices overturned lower court judgments against the Michigan land owners, who had run afoul of the Clean Water Act over their plans to build a shopping mall and condominiums.

The ruling was not the resounding, unambiguous triumph that the land owners, John A. Rapanos and June Carabell, may have hoped for. Instead, five justices found that regulators may have gone too far in trying to thwart their plans, and it returned the case to lower courts for further deliberation. One of the five justices, Anthony M. Kennedy, even suggested in a separate opinion that the property owners might lose once again in the lower courts.

I was very afraid when I last thought about this challenge way back in February. It was pretty clear at that point that Kennedy was the swing vote and that 8 out of 9 minds were probably made up. Kennedy’s lawmaking seems to be a little incoherent in this case. He was obviously not comfortable with the Scalia-Alito-Roberts-Thomas cabal’s clearly ideological decision, but can’t bring himself to make the centrist decision.

But Justice Kennedy wrote that the evidence in the long-running Rapanos and Carabell cases suggests “the possible existence of a significant nexus,” or connection, between their properties and navigable waterways — a connection that, if established in the lower courts, would reaffirm the jurisdiction of the Clean Water Act over the tracts and could cause the property owners to lose again.

If you thought that there was a “significant nexus”, what kind of logic would then make you turnaround and support the opinion that there is no connection?

But Justice Scalia had a different perspective as he questioned the extent of federal jurisdiction. Under the government’s logic, he said, “a storm drain, even when not filled with water, is a tributary.”

“I suggest it’s very absurd to call that ‘waters of the United States,’ ” Justice Scalia added. “It’s a drainage ditch.”

Where Hon. Justice Scalia pretends to misunderstand the concept of drainage? I wonder if he would feel the same way if it was a pollution issue in his neighbor’s backyard.

This will make things confusing for a while, and you all know who confusion favors!

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