Today, the Environmental Law Institute® filed a “friend of the court” brief in the U.S. Supreme Court to argue that the existing federal framework for wetlands protection under the Clean Water Act is both necessary and constitutional. ELI’s submission of an amicus curiae brief in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers marks the first time in the Institute’s 36-year history that it has joined pending litigation. ELI is represented in these cases by former Solicitor General of the United States Seth P. Waxman, now a partner with the law firm of WilmerHale.
“We believe the Rapanos and Carabell cases pose a grave threat to the successful framework established by Congress more than three decades ago to protect the nation’s water resources,” said ELI President Leslie Carothers. “For that reason, ELI was compelled to make its voice heard.”
The cases, to be argued on February 21, involve developers seeking to fill ecologically valuable wetlands in Michigan to build condominiums (Carabell) and a shopping center (Rapanos). In each case, the wetlands are next to tributaries of navigable waterways. When the federal government placed restrictions on development of these “adjacent wetlands,” the developers claimed that the federal regulation not only violates the scope of the Clean Water Act but also exceeds Congressional authority under the U.S. Constitution.
ELI’s filing warns that if the Supreme Court were to accept these radical arguments, the result would be to eviscerate the Clean Water Act’s protection of wetlands—and, indeed, the Act’s protection of all of the Nation’s interconnected water resources—from pollution and, in many instances, outright destruction. Worse, the developers’ arguments could potentially call into doubt the constitutional reach of other bedrock federal environmental laws, such as the Clean Air Act, the Endangered Species Act, and the Safe Drinking Water Act. In this light, the Rapanos and Carabell cases may provide a first glimpse at how the Roberts Court will rule on fundamental environmental protections.
In its brief, ELI argues that the Clean Water Act is properly understood to protect not only traditional navigable waters and their tributaries, but also the wetlands adjacent to these waters. The brief goes on to explain: “Wetlands are critical to the health of traditional navigable waters and are of great value to the people who depend upon these waters for their livelihoods. Wetlands filter and purify water, absorb floodwaters, serve as storm buffers, provide habitat for economically valuable fish and riparian wildlife, and recharge groundwater supplies.” Because the types of wetlands in Rapanos and Carabell are “functionally connected” to traditional navigable waterways, Congress clearly has the authority to protect them under its well-established power over national resources and interstate commerce.
“As both a former State Commissioner of Environment and federal EPA official, I know that federal jurisdiction over development in wetlands connected to navigable waters is the backbone of the wetlands protection program,” said Carothers. “The Clean Water Act leaves ample room for state environmental agencies to play active roles in federal permitting and in regulating areas not covered by the federal program. Moreover, the Act has delivered exactly what Congress was after: a sharp reduction in the huge losses of wetlands that were occurring every year before the Act took effect in 1972. There is no legal or policy justification for dismantling this successful environmental program.”
ELI brings to these cases unparalleled legal and policy expertise in wetlands protection. Founded in 1969, at the dawn of the modern era of environmental law, the Institute has long been a leader in the development and implementation of laws and policies for preserving wetlands and other water resources. The Institute has extensively researched and reported on aspects of the collaborative federal-state framework that governs wetlands conservation. Since 1979, ELI has published the National Wetlands Newsletter, now the preeminent journal on wetlands policy. And for more than a decade, ELI has co-sponsored the National Wetlands Awards, collaborating with members of Congress and EPA to honor individual achievement in wetlands conse