US Supreme Court Hears Major Clean Water Act Cases
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On February 21, 2006 the U.S. Supreme Court heard arguments in two of the most important Clean Water Act cases in the 34-year history of the Clean Water Act, Rapanos v. U.S. Army Corps of Engineers and Carabell v. U.S. Army Corps of Engineers. Rapanos and Carabell are developers from Michigan, who were denied the ability to build in wetlands considered to be ‘waters of the United States by the U.S. Army Corps of Engineers as a result of being adjacent to tributaries to navigable waters, and have taken their legal challenges all the way to the Supreme Court. Rapanos stood by their radical position that the 1972 Clean Water Act protects only ³traditional navigable² waters (those suitable for use by commercial vessels) and those wetlands and streams that are directly adjacent to those waterways. Carabell tried to distance themselves somewhat from that extreme argument, maintaining that the wetland on which they want to build a condominium is not protected by the Clean Water Act because it is separated from a tributary by a berm, so there is no direct hydrological connection to the tributary. The Solicitor General, representing the government, argued that the Clean Water Act protects all tributaries and the wetlands adjacent to them, including those separated by a berm, because they are linked with the water system. He also argued that downstream waters cannot be protected if the tributary system is exposed to unregulated pollution. Reactions To The Deliberations To share reactions to the oral arguments in the cases, Sierra Club, partnering with Earthjustice, NRDC and U.S. PIRG, convened a post-hearing discussion for the press with former U.S. EPA Administrators Russell Train and Carol Browner, William Buzbee, the co-author of the amicus brief filed On behalf of former USEPA Administrators Browner, Reilly Costle and Train, and Kim Connolly, one of the authors of the amicus brief filed by members of Congress who were involved in passing the landmark amendments of 1972 which have become known as the Clean Water Act. Russell Train, the second EPA Administrator and the Administrator when the Clean Water Act regulations were developed, noted that the very reason the Act was passed with a broad definition of waters was in recognition That previous water quality protection focused on the commercially navigable waters, only, had not worked. Asked by one reporter to read the ‘tea leaves’ about how the Court will decide the case, Browner responded that it is very difficult to tell, based on the Justices’ questioning. She noted that the questioning had shone Light on the vulnerability of downstream waters to pollution if the tributaries are exposed to unregulated pollution. She called particular attention to Justice Scalia’s pointed questioning on the justification for federal regulation of ditches and storm drains. She noted that it will be important for the Court to recognize the degree to which our streams, especially flowing through urbanized areas, have been ditched and otherwise manipulated, such as in Florida where ditching has been extensive, yet their protection from pollution is nonetheless critical. She also noted that the unprecedented filing of an amicus brief by former Administrators representing both Republican and Democratic administrations is likely to impress the Court, as well as the brief filed by the 34 states’ Attorneys General. William Buzbee underscored the significance of the EPA Administrators’ amicus filing. He also noted that the Court will hopefully recognize as misrepresentation by the petitioners that the states are able and willing to assert jurisdiction over waters they consider beyond the reach of the Clean Water Act. In fact, many states do not have regulatory programs in effect that are independent of the federal law and regulations, and many states are limited by regulations and policy in applying rules more strict than the federal ones. Kim Connolly noted that the Congressional members brief afforded an opportunity to draw the Court’s attention to the history of the Clean Water Act and Congress’ intentional effort to apply protection broadly. That Congress intended to include all waters of the United States under the jurisdiction of the Clean Water Act will inform the Court in its deliberations. Where Do We Go From Here? Asked for his reaction to the Supreme Court’s deliberations, Sierra Club attorney David Bookbinder commented, “I am neither smart enough nor dumb enough to try to handicap the cases. We will know in 3 months how the Court decides. In the meantime, we should get on with our work.” In that spirit, we encourage everyone to help take advantage of all the attention focused by the media on the Clean Water Act, and threats to its broad scope, by sending letters to the editor of your papers expressing support for the Clean Water Act to continue to protect all the nation’s waters in order to be able to work. Click here for a sample letter to the editor
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