In Rapanos v. U.S ., five Supreme Court justices signaled that they are ready to listen to the states on questions of federalism.
The case concerned the reach of the federal Clean Water Act, and the federal role in protecting our lakes, rivers, and streams. In brief after brief, developers, corporate polluters, and property rights extremists told the Court that it should radically curtail the reach of the Clean Water Act in order to protect the interests of states. On behalf of the Association of State and Interstate Water Pollution Control Administrators, CRC explained to the Court and the media that the states themselves actually supported strong federal protection for wetlands under the Clean Water Act.
States have an enormous stake in the continuity of the existing State-federal partnership, built up over the last three decades, that safeguards our wetlands, streams, and rivers. Far from protecting State prerogatives, gutting the jurisdictional reach of the Clean Water Act would leave States vulnerable to flooding and pollution that originates in upstream States, and make it impossible for States to protect their own waters.
At oral argument, the U.S. Solicitor General put the states’ case quite succinctly, saying, “It’s a bit much to ask legislators in Minnesota and Wisconsin to restrict local development to protect water in Mississippi.”
The Supreme Court split 4-1-4 in these cases. Justice Kennedy's concurring opinion represents the law that must be followed by lower courts. Kennedy endorses the argument that the “[Clean Water] Act protects downstream States from out-of-state pollution that they cannot themselves regulate.” “In most cases,” Kennedy writes, “regulation of wetlands that are adjacent to tributaries and possess a significant nexus with navigable waters will raise no serious constitutional or federalism difficulties.” He adds that “the possibility of legitimate Commerce Clause and federalism concerns in some circumstances does not require the adoption of an interpretation that departs in all cases from the Act's text and structure.”
Kennedy’s ruling leaves some troubling gaps, as new lower court decisions make clear. The deeply fractured ruling highlights the need for Congress to pass pending legislation that would make crystal clear Congress’ intent to broadly protect our nation’s waters.
But Kennedy's Rapanos opinion indicates that he is willing to listen to the states to determine how to balance the need for federal power with the desire to encourage state innovation. In light of the direction that the Court was moving in during much of the Rehnquist era, this represents real progress.
Rapanos in pictures
To read Community Rights Counsel's brief click here.
To read Community Rights Counsel's op-ed in the Legal Times on the case, click here.
To read the Supreme Court's opinion click here.
To read Community Rights Counsel's reaction to the decision click here.
To read an analysis of this case that appeared in The New Republic online, click here.
Decision Below: 376 F.3d 629 (6th Cir. 2004)
Lower Court Case Number: 03-1489
Cert. Granted 10/11/05
Consolidated with 04-1384.
- Does the Clean Water Act prohibition on unpermitted discharges to
"navigable waters" extend to nonnavigable wetlands that do not even abut a
- Does extension of Clean Water Act jurisdiction to every intrastate
wetland with any sort of hydrological connection to navigable waters, no
matter how tenuous or remote the connection, exceed Congress'
constitutional power to regulate commerce among the states?
Carabell v. Army Corps of Engineers, S. Ct. No. 04-1384
Decision Below: 391 F.3d 704 (6th Cir. 2004)
Lower Court Case Number: 03-1700
Cert. Granted 10/11/05
Consolidated with 04-1034.
- Does the Clean Water Act extend to wetlands that are hydrologically isolated
from any of the "waters of the United States?"
- Do the limits on Congress' authority to regulate interstate commerce
preclude an interpretation of the Clean Water Act that would extend federal
authority to wetlands that are hydrologically isolated from any of the "waters
of the United States?"
- State Comments on Jan. 10, 2003 “Advance Notice of Proposed Rulemaking On Definition of ‘Waters of the United States’”
- Local Government Comments on Jan. 10, 2003 “Advance Notice of Proposed Rulemaking On Definition of ‘Waters of the United States’”
- Tribal Comments on Jan. 10, 2003 “Advance Notice of Proposed Rulemaking On Definition of ‘Waters of the United States’”
- Memorandum from Diana Klemans, Chief, Surface Water Assessment Section, Water Bureau, Dep’t of Envt’l Quality, to Peter Manning, Division Chief, Dep’t of Attorney General (Jan. 10, 2006)