|Reaction. Hopper (R), lawyer for Rapanos (L).|
Reflecting their divisions, the justices issued five opinions in the cases, Rapanos v. U.S., and Carabell v. U.S. Army Corps of Engineers. One, written by Associate Justice Antonin Scalia, said the Corps of Engineers overreached its jurisdiction in the Michigan cases and had a much too broad view of “waters of the United States” that it can regulate. But only four justices, counting Scalia, endorsed that opinion, one short of a majority.
Four justices took the other side, backing an opinion by Associate Justice John Paul Stevens contending Corps authority applies to the Michigan tracts.
The key statement came from Associate Justice Anthony Kennedy, who agreed with Scalia and the other conservatives that the case should be sent back to lower courts, but didn’t endorse the Scalia or Stevens groups’ opinions.
Kennedy instead focused on the high court’s 2001 decision, Solid Waste Agency of Cook County, which said wetlands need a “significant nexus” to navigable waters to qualify for federal regulation. He said the appellate court “did not consider all the factors necessary to determine whether the lands in question had, or did not have, the requisite nexus.”
Reed Hopper, plaintiff John Rapanos’ lawyer, said, “We were very pleased with the outcome,” adding that Kennedy was “very clear” that federal wetlands authority has “outer limits.” But Hopper, also Pacific Legal Foundation’s principal attorney, said, “I think everyone is disappointed that the court did not commend a particular majority in defining the exact scope of the Clean Water Act.”
Rapanos and his wife wanted to build on three parcels, but refused to get federal permits. They contended the law does not cover non-navigable intrastate wetlands far from navigable waters. In the other case, the Corps denied a permit request from Keith and June Carabell to put fill in a wetland near a drainage ditch.
Where does this leave builders and environmentalists? Predicted Chief Justice John Roberts, who signed on to the Scalia opinion: “Lower courts and regulated entities will now have to feel their way on a case-by-case basis.” Sierra Club President Carl Pope says the decision will lead to “endless administrative proceedings and legal challenges.”hose hoping the Supreme Court would draw a clear line marking the limits of federal wetlands regulation still don’t have a definitive answer. In this term’s major environmental and construction case, the high court June 19 ruled that lower courts incorrectly said Clean Water Act regulations don’t apply to four Michigan wetlands. But beyond that the justices failed to agree on how far federal wetlands authority extends.