SCOTUS to hear CWA Cases
This month's ABA Journal highlighted three cases that are to be heard by the U.S. Supreme Court on February 21st under new Chief Justice Roberts in "Going with the Flow: Wetlands Cases Raise Anew the Question of the Environment and Federal Power".
The first case, Rapanos v. United States, No. 04-1034, turns on whether there is a "hydrological connection" from Rapanos' land to "navigable waters" (Lake Huron) which would extend federal regulation via the Commerce Clause to distant wetlands.
Coupled w/ Rapanos, SCOTUS will hear Carabell v. U.S. Army Corps of Engineers, No. 04-1384, to determine whether their wetlands are within the Lake St. Clair watershed and therefore subject to "waters of the United States".
Thirdly, the issue of S.D. Warren Co. v. Maine Board of Environmental Protection, No. 04-1527, is whether water flowing through an existing dam qualifies as a "discharge".
The import of these cases draw in the argument of potential over-reaching of federal regulation under the Commerce Clause. Rapanos currently face $13 million in fees and fines because of the broad interpretation of "navigable waters" under the Clean Water Act. However, part of the theory of liability for what Rapanos does with his wetlands is the concern of "tributaries that flow into traditional navigable waters" per U.S. Solicitor General Paul Clement.
Another consideration as SCOTUS prepares to hear these cases, is the position of Chief Justice Roberts. As pointed out in the article, Roberts dissented in Rancho Veijo LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), that barred developers from building under the Endangered Species Act, questioning the extent of federal jurisdiction.
It should be interesting to see where our highest court comes down on these cases...
posted by Anonymous @ 8:36 AM
2 Comments:
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Anyway. I read Roberts' article on standing a few months ago, and his dissent in Rancho. I see a difference between his remarks about the arroyo toads in his Rancho dissent and the issues of Carabell and Rapanos -- in Rancho, Roberts goes straight to Lopez and Morrison for Congress' Commerce Clause power, agreeing with the late Chief Justice's 'narrowing' opinion in them, but Rapanos and Carabell don't quite seem to reach that issue, to me. Will Roberts argue that the Court shouldn't show Chevron (or Skidmore) deference to a reasonable (or persuasive) interpretation of a statute?
Ha! You should check out SCOTUSBlog. It's not a blog by the justices (wouldn't that be a hoot -- I've read some things I'd label 'blogrants' from Scalia already), it's a Court-watching blog by a law firm that spends a lot of time in front of the Court.
On Rapanos/Carabell and the dissent in Rancho Viejo -- the 'problem' Roberts had with RV was something like what the ESA-triggering activity was: was the development of the area interstate commerce, or do the frogs themselves have to be interstate-commerce-frogs. Roberts was saying the latter needed to be true.
Rapanos/Carabell don't seem to rise to the same kind of problem that SWANCC presented with the Migratory Bird Rule. Corps authority seems to be on much firmer ground. I mean, wetter wetlands. Or something like that. The outer bounds of Congress' authority aren't getting invoked, here.
The agency is the expert, and experts are allowed to change (or refine) their opinion in the light of new data (use "hydrologically connected"),...it seems like if the Court tries to draw a bright line at Riverside (putting Rapanos and Carabell on the wrong side of that line), it would have to be some sort of "this is as far into the realm of the state as the federal govt can reach" type argument. But *that* would also be making a policy statement about the goals the CWA are supposed to effect -- and that's the political branches' job.
I don't know. But my $2 is on administrative deference at the moment, in the interests of avoiding "judicial activism". Though, I'm sure they'll get accused of it, either way.
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