February 21, 2006

Water Cases Before the Supreme Court: Is Federal Environmental Law Sunk?

Co-Sponsored by the Environmental Law Institute
and the Georgetown University Law Center

On February 21, the Supreme Court heard oral arguments in three water cases that could dramatically reshape federal environmental regulation and the balance of federal/state power. Immediately after the argument, ELI co-hosted a panel with two Georgetown Law Center institutes reviewing Rapanos v. United States, Carabell v. U.S. Army Corps of Engineers, and S.D. Warren Co. v. Maine Board of Environmental Protection.

Panelists noted that the Court focused its questions in the Rapanos and Carabell cases on statutory instead of constitutional issues. Because the Justices mostly questioned the definitions of ditches, tributaries, and adjacency, the panel unanimously predicted that the Court will avoid addressing whether the Clean Water Act exceeds the bounds of Congress’ authority under the Constitution. Representatives on both sides of Rapanos predicted victory for their side, while most panelists appeared less sure that the Court will rule on Carabell without remanding for further information.

Panelists discussing the S.D. Warren case were not surprised by the line of questions the Justices asked. These focused mostly on the definition of discharge. Representatives from the Maine side of the case feel confident in their argument that dam water meets the plain language definition of a discharge, while the opposite side was pleased that the Justices appeared concerned about states overreaching statutory intent.

Panelists included:

Daniel M. Adamson, Davis Wright Tremaine LLP
Virginia Albrecht, Hunton & Williams LLP
Derb Carter, Southern Environmental Law Center
Reed Hopper, Pacific Legal Foundation
Richard Lazarus, Georgetown University Law Center
G. Steven Rowe, Attorney General of Maine
Malcolm Stewart, U.S. Department of Justice

To listen to an audio recording of this seminar, please CLICK HERE.

To purchase a video recording, please visit the C-SPAN Web site.