An editorial / By Dale McFeatters
Scripps Howard News Service
June 21, 2006
In a wildly divided decision - five separate opinions - the court came up one justice short of severely rolling back the Army Corps of Engineers' authority to protect wetlands under the 1972 Clean Water Act. A series of regulations and court decisions has steadily broadened that authority "beyond parody," in the opinion of Justice Antonin Scalia.
The decision was rendered in what is likely to be a pattern for this court, with the four "conservative" justices, insofar as those terms have meaning - Roberts, Scalia, Thomas and Alito - issuing one opinion; the four "liberal" justices - Breyer, Ginsburg, Souter and Stevens - issuing another, and Justice Anthony Kennedy being the swing and deciding vote, as he was on this case.
Kennedy sided with the conservatives, but only so far as suggesting that perhaps the Corps did indeed overstep its authority and ordering the two cases back to the lower courts. He offered a new standard for judging whether the Corps had jurisdiction: Does a "significant nexus" exist between a wetland and any navigable waters its development might pollute?
Scalia, et al, would impose a much stricter standard, that the wetland has "a continuous surface connection" with relatively permanent or free flowing bodies of water.
Justice John Paul Stevens, et al, argued for the much broader standard of "all identifiable tributaries" of large bodies of water.
The Bush administration, for all the complaints about its record on the environment, argued in favor of leaving the Corps' authority intact, as did environmental organizations and most state governments.
The case straddles the tricky boundary between owners' rights to develop their property as they see fit and government's authority to regulate land use for the greater good. The court's decision did not extend much help in that regard.
In his opinion, Chief Justice John Roberts noted that the court had been unable to agree "on precisely how to read Congress' limits on the reach of the Clean Water Act," adding that the lower courts and regulating agencies "will now have to feel their way on a case-by-case basis."
Here is a clear invitation for Congress to amend the act to state explicitly what it intends the scope of the Corps' authority to be. Otherwise, the courts will "feel their way" and if the results make the lawmakers unhappy, don't come around complaining about "activist judges."
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