The Supreme Court, venturing into legal territory that it historically has avoided, said Tuesday that next year it will hear cases over the government’s authority to regulate wetlands.
Jumping into a subject that is crucial for both environmentalists, property owners and developers, the justices will take up claims that federal regulators have gone too far by restricting development of property that is miles away from any river or waterway.
With more than 100 million acres of wetlands in the United States, an area the size of California, the stakes are high, justices were told.
Environmental cases have been divisive at the court. In 2002, justices deadlocked 4-4 in a case that asked whether farmers should have more freedom to work in environmentally sensitive areas. In 2001, the court split 5-4 in a ruling that limited the scope of government protection of wetlands, but the decision did not go as far as environmentalists feared.
Three new cases give the court an opportunity to put limits on federal government authority, and a key player may be new Chief Justice John Roberts. The appeals were the first the court agreed to hear under Roberts’ leadership.
Environmentalists have been worried about how Roberts will vote in such cases.
Eyes on Roberts
As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego area construction project because it encroached on the habitat of the rare arroyo southwestern toad.
But in the first major oral argument he heard, Roberts chided a lawyer for Oregon who was there to try to protect that state’s physician-assisted suicide law from being made secondary to the federal Controlled Substances Act.
In the Supreme Court cases involving wetlands, Bush administration lawyer Paul Clement, the solicitor general, said the government has long-standing power to protect waterways, even if that means limits on pollution on nearby land.
In one of three cases that will be argued at the court next year, a Michigan man, John A. Rapanos, was convicted of violating the Clean Water Act for filling his wetlands with sand to make the land ready for development. He also lost a civil suit, which is at issue in his appeal.
In a second case, justices will decide if the Army Corps of Engineers had the authority to restrict the development of a condominium in MacComb County, Mich. The government contends the work could pollute Lake St. Clair, which connects Lake Huron and Lake Erie.
Justices also agreed to hear a third case involving the same law, the 1972 Clean Water Act. It was filed by the owner of hydroelectric dam projects in Maine which provide electricity for the company’s paper mill. Lawyers for S.D. Warren Co. argue that the company should not be required to get permits for some of its operations.
The cases are Rapanos v. United States, 04-1034, Carabell v. Army Corps of Engineers, 04-1384, and S.D. Warren Co. v. ME Board of Environmental Protection, 04-1527.