MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court split three ways today on a major environmental case. Four of the nine justices voted to radically restrict the Clean Water Act. Four justices voted to keep it as it is and the deciding vote was cast by Justice Anthony Kennedy, who's solo opinion will likely dictate the law of the land, at least for now.
NPR's Nina Totenberg reports.
NINA TOTENBERG reporting:
Before the court was a challenge to the way the federal government in concert with the states regulates the nation's wetlands under the Clean Water Act. The law, enacted in 1972, is widely credited with cleaning up and preserving the nation's waterways. But it's been a thorn in the side of developers and some property owners because it requires them to get a permit for filling and dredging wetlands that empty into navigable waters and their tributaries. Although 97 percent of the permit applications are granted, the process can be cumbersome and expensive.
The case ruled on by the court today was brought by a Michigan developer named John Rapanos, who wanted to build a shopping center and housing development on 700 acres of heavily forested wetland. Although the federal government, the State of Michigan and even a private consultant Rapanos hired all told him he needed a permit, he never applied for one and went ahead for years bulldozing and dredging in violation of cease-and-desist orders from both the state and federal governments.
He took his case to the Supreme Court, he said, because he and conservative and business groups backing him view the current permit regimen as far exceeding what Congress authorized in the Clean Water Act.
Mr. JOHN RAPANOS (Developer): The federal government is trying to take over the whole country and if they do, all of us will lose. We will all lose if the federal government gets away with this.
TOTENBERG: Today, the U.S. Supreme Court fell one vote short of gutting the Clean Water Act as it's been implemented for the last 30 years. Justice Antonin Scalia, writing for himself and Justices Thomas, Alito and Chief Justice Roberts, said that the law only authorizes the federal government to regulate permanent, standing and continuously flowing bodies of water that, as Scalia put it, in common parlance are called rivers, lakes, oceans and streams.
Tributaries to those bodies of water are only covered by the law, he said, if they are adjacent, meaning that there's a continuous surface connection to the permanent navigable waterway, making it difficult to determine where the water ends and the wetland begins. If a wetland is hydrologically connected to a regulated waterway, that's not enough.
The opinion written by four other justices, Stevens, Souter, Ginsburg and Breyer, was diametrically opposite. They said that Congress had set out to restore the nation's waterways and given two federal agencies, the Corps of Engineers and the EPA, the authority to write regulations to carry out that mandate.
For 30 years, wrote Justice Stevens, those agencies have carried out that responsibility using scientific expertise that, as he put it, is not normally part of the education of most lawyers. And Congress, he said, has ratified those regulations.
The vote cast by Justice Kennedy thus was decisive and he wrote a 30-page opinion representing his views and his views alone. Rapanos's attorney, Reed Hopper of the Pacific Legal Foundation, saw in Kennedy's opinion at least some limit on federal authority.
Mr. REED HOPPER (Pacific Legal Foundation): Specifically, it rejected the idea that the Corps or EPA could regulate any area over which water flows, no matter how insignificant the connection.
TOTENBERG: But as Georgetown law professor Richard Lazarus observes -
Mr. RICHARD LAZARUS (Georgetown University): His reasoning is actually much closer to Stevens's dissent than to Scalia's plurality.
TOTENBERG: Kennedy said the Scalia four were wrong in limiting the regulation of wetlands only to those that are continually flowing or abutting a stream, river, lake or ocean. He said the Scalia group was wrong, too, in saying that filling and dredging material is not a pollutant. He said that the tone of the Scalia opinion is unduly dismissive of the interests at stake here. The objective of the Clean Water Act, he said, is to restore and maintain the chemical, physical and biological integrity of the nation's waters and that could not be done under the Scalia regimen.
But Kennedy voted with the Scalia group on one important point, sending the case back to the lower courts. They had used the wrong standard in evaluating the Rapanos challenge, he said, and because his vote was determinative it is his standard that the lower courts will now have to use, whether a piece of land has a significant nexus, in other words, a significant connection, to the health of the nation's navigable waters.
Wetlands, Kennedy noted, perform critical functions. They act as the kidneys for waterways, purifying them, trapping pollutants. They act as sponges, preventing flooding and providing runoff storage for drought. But Kennedy said that until regulations are amended to more specifically enact those criteria, challenges to the permit provisions should be evaluated on a case-by-case basis.
Environmentalists today acted as though they'd been nicked but not killed by a speeding bullet. Carol Browner is chairman of the Audubon Society and former head of the EPA.
Ms. CAROL BROWNER (Audubon Society): Well, I think it's not an outright win for those of us who want to protect wetlands. But we didn't lose. It essentially sends the case back down to the lower courts and I think Justice Kennedy, when you actually look at the parameters, the types of wetlands he would protect, they appear to be very similar to the wetlands that are protected today. That's the good news.
TOTENBERG: Indeed, Justice Kennedy said in his opinion that the evidence suggests that when the lower courts use his standard in the Rapanos case, the end result will likely be the same and the federal government will prevail.
Nina Totenberg, NPR News, Washington.