Supreme Court Divides Sharply Over Reach of Clean Water Act

June 2006

Justice Kennedy’s Swing Vote Recognizes Wetlands’ National Importance, but Imposes Burdensome “Case-by-Case” Determination of Federal Jurisdiction

A fractured Supreme Court today provided conflicting views of when ecologically valuable wetlands are protected by federal law. With four Justices arguing for a constrained reading that would hobble the Clean Water Act, and four Justices arguing in favor of robust federal protection, Justice Kennedy’s concurring opinion emerged as the one most likely to shape the law in future cases.

In today’s consolidated cases, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, developers sought to fill wetlands in Michigan to build condominiums (Carabell) and a shopping center (Rapanos). The Supreme Court remanded both cases to the U.S. Court of Appeals for the Sixth Circuit for further deliberations.

“The decision is disappointing but not disastrous,” said Leslie Carothers, President of the Environmental Law Institute. “It is disappointing because it leaves the fate of these and other wetlands unclear and because four Justices, including the Court’s two new members, signed on to an opinion by Justice Scalia that would have rolled back longstanding federal protection of major wetlands and other waters.”

“But five Justices on the Court emphatically rejected the conclusions in that opinion. Justice Kennedy’s concurring opinion sends these cases back to the lower court to determine whether there is a ‘significant nexus’ between the wetlands at issue and navigable waters,” said Carothers. “In so doing, he rejects Justice Scalia’s strained interpretation of the Clean Water Act, calling that reading ‘unprecedented’ and describing the plurality opinion as ‘inconsistent with the Act’s text, structure, and purpose.’”

“Justice Kennedy’s opinion properly recognizes the important public interest served by wetlands protection,” said Carothers. “Specifically, he emphasizes that the filling and destruction of wetlands contributes to national problems such as flood damage and the hypoxic ‘dead zone’ in the Gulf of Mexico — concerns that ELI highlighted in its amicus brief.”

“Even so, Justice Kennedy’s opinion imposes a new administrative burden that potentially creates a major, real-world hurdle for federal regulators seeking to protect wetlands,” added Carothers. “Fortunately, nothing in the ruling prevents Congress from re-affirming its intent to fully protect wetlands and other waters under the Act.”