The high court's no-decision decision

Posted: Jun 20, 2006 12:01 AM

When word came on Monday morning that the Supreme Court had reversed the 6th Circuit in the two big wetlands cases, some of us critics of federal imperialism were ecstatic. Callooh, Callay, O frabjous day! We fairly chortled in our joy. Justice Antonin Scalia had slain the invidious Corps of Engineers!

The day wore on. Five separate opinions had to be read. They ran on to 99 pages. Exhilaration slowly wilted, faltered, sighed, at last expired. The court had split 4-1-4. There was no majority opinion to be hung triumphantly, suitably framed, upon our office walls. The engineers had not been effectively admonished after all.

This was a struggle for power within the court. The facts hardly mattered, but for the record: John Rapanos and June Carabell separately wanted to develop property they owned in Michigan. The property was encumbered by wetlands that were arguably -- very arguably -- subject to control of the Army engineers. When the engineers refused to grant permission, Rapanos blew up, tweaked their noses, finally talked himself into civil and criminal penalties.

The chain of events began 17 years ago. It will run on for years to come. The engineers will make cosmetic changes in their handling of the federal Clean Water Act. The U.S. Court of Appeals for the 6th Circuit will bless the newborn regulations. Eventually the issue will return to the high court, and we will learn, as we always learn, that ours is a government of men, not laws.

In his opinion for the splintered court, Justice Scalia said:

"The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act -- without any change in the governing statute -- during the past five presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency have interpreted their jurisdiction over 'the waters of the United States' to cover 270 to 300 million acres of swampy land in the United States -- including half of Alaska and an area the size of California in the lower 48 states. ...

"The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit -- whether man-made or natural, broad or narrow, permanent or ephemeral -- through which rainwater or drainage may occasionally or intermittently flow. In this view, the federally regulated 'waters of the United States' include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by flood waters once every 100 years."

Indeed, as Scalia pointed out, the corps' current regulations assert its jurisdiction over not only navigable rivers and their interstate tributaries, but also over "all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds, the use, degradation or destruction of which would affect interstate or foreign commerce."

Such sweeping jurisdiction does not bother Justice John Paul Stevens. To curtail the Corps' jurisdiction, he said, "would needlessly jeopardize the quality of our waters." Scalia and his colleagues, in his dissenting view, had disregarded the respect that is owed to the president, to Congress, and to "its own obligation to interpret laws rather than to make them." He found Scalia's creative opinion "utterly unpersuasive." In reaching their understanding of the term "adjacent to," they had "plainly neglected to consult a dictionary." The encompassing jurisdiction given to the Army engineers "is surely wise."

Justice Anthony Kennedy filed a lonesome concurrence, but he concurred only in the decision to send the two cases back to the lower federal courts. Otherwise, sad to say, Kennedy wibble-wobbled, shilly-shallied, backed and filled, and finally hemmed and hawed his way to an opinion that disappointed conservative observers and did not much please the Stevens faction either.

The Corps of Engineers, Kennedy complained, had based its jurisdiction in the case of Mrs. Carabell solely upon the adjacency of certain wetlands to a ditch opposite a berm on the edge of her property. Yes. Mere adjacency to a tributary of this sort is insufficient. On remand, the Court of Appeals must consider whether specific wetlands possess a significant nexus with navigable waters. And so forth.

It promises to be a long summer before the Corps compliantly amends its wetlands regulations. And a long autumn. Maybe next year. Or the year after?