More Information on Supreme Court Clean Water Act Cases
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The following sections are in this article: More reaction to Supreme Court arguments More reaction to Supreme Court arguments Georgetown University Law School convened a panel of lawyers representing both sides of the case. The discussion was video-taped by C-SPAN and will be aired at a date and time to be announced on their website www.c-span.org The program can be downloaded from the Law School’s website as a webcast or podcast, if you have that capability Description of the cases and issues prepared for the press Last October, the Supreme Court agreed to hear two consolidated Clean Water Act cases, Carabell v. United States and Rapanos v. United States, both on appeal from the Sixth Circuit Court of Appeals. The petitioners are developers planning construction projects in Michigan. In one case (Carabell), the petitioners’ condominium development will destroy nearly 16 acres of wetlands, and in the other (Rapanos), several wetland areas have already been filled in order to make way for roads, a shopping center, and other development. In fact, John Rapanos was convicted of a criminal violation of the Clean Water Act in a separate proceeding. The cases question whether the Clean Water Act was intended to protect tributaries that flow into larger water, and wetlands adjacent to such tributaries. In both cases, the appeals court affirmed Congress’ intent to protect these waters. The petitioners now are trying to convince the U.S. Supreme Court to reverse the Sixth Circuit decisions, and are arguing that the act does not ¬ and constitutionally cannot ¬ protect any waters other than traditional navigable waterways and those wetlands and streams that abut them. The two appeals court decisions are overwhelmingly consistent with
Clean Water Act case law. In 1985, the Supreme Court ruled unanimously
in a case very similar to them, Riverside Bayview Homes v. Army
Corps of Engineers, that the act protects wetlands adjacent to waters
of the United States. Unlike the ponds in SWANCC, which did not share proximity, or demonstrated hydrological or ecological connections (beyond migratory bird use) with other waters, the two cases now before the Supreme Court involve tributaries to larger waterbodies (specifically, the Great Lakes), and wetlands adjacent to those tributaries. Key Questions for the Supreme Court In Carabell and Rapanos, the Supreme Court will address two key
questions: The Intent of the Clean Water Act The law now known as the Clean Water Act was adopted as the Federal Water Pollution Control Act Amendments of 1972. With the passage of this law, Congress made a national commitment to control and eventually eliminate water pollution. The very first sentence of the statute states: “The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Congress gave the EPA a broad mandate to protect the “waters of the United States” to achieve the law’s goals. In defining the scope of the 1972 law, Congress used the term “navigable waters,” which it borrowed from older statutes, but then expanded protections beyond the limit of traditional navigable waters. Under the new law, the term “navigable waters” was defined as “waters of the United States.” As the House Public Works Committee stated: “The Committee fully intends the term Œnavigable waters’ be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.” Meanwhile, the Senate Committee on Public Works stated in its report: “Through a narrow interpretation of the definition of interstate waters the implementation of 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharges of pollutants be controlled at the source.” The debate in both the House and Senate on the act’s final passage confirmed the conference report’s intent that the law be applied broadly. For example, Rep. John Dingell (D-Mich.), who reported the conference committee bill to the House, explained: The conference bill defines the term “navigable waters” broadly for water quality purposes. It means all “the waters of the United States” in a geographical sense. It does not mean “navigable waters of the United States” in the technical sense as we sometimes see in some laws. Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the [Army] Corps of Engineers, going to govern matters covered by this bill. Thus, with overwhelming, bipartisan support, Congress adopted a broad scope for the law to protect “waters of the United States” as necessary to clean up the nation’s waters. The notion that tributaries of larger waters are beyond the reach of the Clean Water Act is especially absurd. Such tributaries were expressly covered under the 1899 Refuse Act, the predecessor to the 1972 act’s core permit program. It is untenable to assert that Congress, when adopting the 1972 law that the Supreme Court has emphatically described as “comprehensive” and “all-encompassing,” actually intended to cut back on the coverage of the predecessor law from the nineteenth-century. Congress’ Commerce Clause Authority to Prevent Water Pollution Protecting tributaries and their adjacent wetlands not only furthers congressional intent embodied in the Clean Water Act, but also is well within Congress’s Commerce Clause power. In fact, protecting these waters is necessary to achieve many goals embodied in the act itself, which the Supreme Court has previously recognized as legitimate grounds for exercise of Congress’s Commerce Clause power. These include:
Contrary to the petitioners’ suggestion, application of the act’s permit safeguards to tributaries and their adjacent wetlands does not raise any real Commerce Clause concerns ¬ especially in situations such as Carabell and Rapanos where the proposed activities themselves are unquestionably economic in nature (as is true with almost all activities that require a permit to discharge pollution into water). The clear language and legislative history of the Clean Water Act, the weight of three decades of its enforcement and consistent judicial interpretation, and the strong state interest in maintaining the role of the law should make this an open-and-shut case. But with what is at stake, it is impossible to take anything for granted. Soon we will see if a majority of the Supreme Court will follow years of settled law and precedent or undermine longstanding environmental and public health protections. Click here to return to the
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