Freedom Newspapers Syndicate
One might have hoped for a little clarity when the Supreme Court addressed the question of just how expansive is the Army Corps of Engineers’ regulatory power over “wetlands” under the 1972 Clean Water Act. Instead we got an intellectual and legal muddle that is likely to encourage further overregulation and expensive litigation with nothing resembling a coherent set of principles to guide the courts.
The Clean Water Act gives federal regulators power to regulate pollutant discharges into “navigable waters” as an expression of the power of the national government to regulate interstate commerce, which is the only constitutional way Washington has authority over what is rightly a matter for private property owners and state and local officials to decide. But the Corps of Engineers has interpreted that mandate broadly to give itself power over wetlands “adjacent” to navigable waters, or creeks and ditches that eventually feed into navigable waters. That assertion has been hotly contested by property owners over the years, and the courts have leaned both ways.
The three parcels in Michigan owned by the Rapanos brothers were close enough to a real river that the Corps assumed jurisdiction. June Carabell’s 19 acres, on which she wanted to build condos, are a mile from Lake St. Clair, connected by man-made ditches. The feds prevented the owners from any development in the name of clean water, and the landowners appealed.
Four justices — Roberts, Alito, Scalia and Thomas — agreed that taking federal control of these small properties was an overly expansive interpretation of the term “navigable waters” that should yield to a more common-sense understanding. As Roger Pilon, head of constitutional studies at the Cato Institute, said, however, “the best thing that can be said about the Rapanos case is that Roberts and Alito are clearly in the camp of textualism and the protection of property rights.”
Unfortunately, Justice Anthony Kennedy, who voted with the other four justices to send the case back to the lower courts, has a more muddled perspective. Ignoring the text of the law and constitutional limitations, he figured the Corps of Engineers hadn’t made a sufficient showing that it had proper authority, but argued that if it showed a “significant nexus” — a term he couldn’t really define — to navigable waters, it could go ahead and regulate. Thus courts in the future — hardly known for sophisticated scientific knowledge — will assess federal power over puddles and other bodies of water on a case-by-case basis.
In this case the Bush administration argued on behalf of the Corps of Engineers, prompting Chapman University Law School Professor John Eastman to say “this administration has defended a more expansive interpretation of environmental law than any administration in history, and the courts have now let them get away with it.” In his amicus brief for the Claremont Institute, Eastman argued that the solicitor general — whose legitimate clients are the American people and the U.S.
Constitution, not every federal agency that overreaches — should have refused to defend this case, following a precedent set by Chief Justice Roberts when he was acting solicitor general.
Instead, the administration defended the Corps of Engineers’ audacious power grab and further undermined private property rights. The founders would be appalled.