This Land Is Wetland

Monday, June 26, 2006

WHETHER THE Supreme Court's decision last week on federal protection of wetlands is a glass half full or half empty for environmental protection depends on whether you focus on what the decision did or on what four justices threatened to do.

What it did is not much. A majority of the court voted to rein in wetland protection under the Clean Water Act. But Justice Anthony M. Kennedy -- who supplied the crucial fifth vote -- did so on far narrower grounds than his colleagues. His vote, along with those of the four dissenting justices, paradoxically creates a different majority that should allow strong federal protection to continue. The troubling feature of the case is how close Justice Antonin Scalia's opinion for the court's conservative flank came to becoming law and what that may portend for the future.

The Clean Water Act gives the federal government power over "navigable waters," which the law defines as the "waters of the United States." Historically, the government has construed these terms broadly, as has the court, to include wetlands adjacent to streams and channels -- some of them seasonal -- that in turn feed navigable waters. The logic is that protecting navigable waters is impossible without protecting the waters that empty into them. But the legal question of how far upstream the Clean Water Act goes has troubled courts for years.

The difficulty with Justice Scalia's answer to this question -- which would limit federal jurisdiction under the law to "relatively permanent, standing or continuously flowing bodies of water" that constitute "geographic features" -- is not merely that it would radically scale back federal power under the law to preclude protection of just about all wetlands. His opinion also drips with hostility toward environmental protection as a goal. Federal regulators, he complains, wield "the discretion of an enlightened despot." Under the government's reading of the law, he warns, "the statutory 'waters of the United States' engulf entire cities and immense arid wastelands." That both of the court's new justices signed such an opinion is disturbing.

The specific issue of wetlands is fixable. At any time over the past three decades, Congress could have stepped in to clarify which wetlands count as the "waters of the United States." Legislation to do so is pending and ought to be passed. There is a broader issue: The bloc favoring a harder-line approach to environmental enforcement could be among the more dangerous features of the new Roberts Court.

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