Today Community Rights Counsel (CRC) urged the Supreme Court not to dramatically curtail the reach of the Clean Water Act in a misguided attempt to protect States. On behalf of our client, the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), CRC explained to the Court why the States strongly support the current federal program for protecting clean water.
The future of the Clean Water Act is at stake in two cases, Rapanos v. United States and Carabell v. United States, which the Court will hear on February 21. The position advocated by counsel for Mr. Rapanos, and most of the amici who favor the developers in this case, would strip federal protection from up to 99 percent of the rivers, streams, and wetlands currently protected by the Act. The importance of this case convinced ASIWPCA, a non-partisan organization that represents the State and Interstate officials who implement surface water protection programs, to file its first-ever amicus brief. The brief is available at http://www.communityrights.org/rapanosvus.pdf.
In brief after brief, developers, corporate polluters, and property rights extremists have told the Court that radically curtailing the reach of the Clean Water Act is necessary to protect the interests of States. But States themselves disagree.
ASIWPCA’s brief explains that 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.
The Rapanos and Carabell cases will be an important a bellwether for the direction of the Roberts Court. The developers advance a misguided notion of State prerogatives that the States themselves overwhelmingly reject, one flatly inconsistent with the text, structure and history of the Act. During his confirmation hearings, Chief Justice John Roberts emphasized judicial modesty and respect for the policy choices made by our elected representatives. This will be an important test of those words. A ruling for the States and the federal government may indicate that judicial modesty will be the hallmark of Chief Justice Roberts’ tenure on the bench. The future of federalism and environmental law both hang in the balance.