WATER FIGHT

The Supreme Court, sharply divided, issued a confusing ruling that might lead to years of regulatory battles and lower-court cases and threatens the power of the Clean Water Act. The ruling has very wide-reaching implications for both the environment and for whether the federal government has the ability or the power to enforce laws that protect it.

Passed under President Nixon in 1972, the Clean Water Act was one of his most successful and popular environmental laws and gives the federal government authority over the "waters of the United States." There is a lot at stake: thousands of miles of small streams and an estimated 20 million acres of wetlands. Water in many states is connected, with almost every state downstream from another. Federal oversight must play an important role in environmental protection.

The recent Supreme Court ruling was spurred by two Michigan property-rights cases that sought to redefine how the Clean Water Act was interpreted and challenge the power and constitutionality of that important federal statute. In a case called Rapanos v. U.S., John A. Rapanos faced steep criminal charges for filling in federally protected wetlands—without permission—in order to build a shopping center. In a companion case, Carabell v. Army of Engineers, the Army Corps denied a permit to a couple who wanted to fill part of their property so they could develop condominiums.

At the core of these cases about "wetlands"—ecosystems essential for flood control, drinking water, agriculture, and wildlife—is also a large, key issue: How far-reaching is the federal government's (Congress') ability to pass and enforce laws and does it have the power to protect water that might be just within a single state?

The Supreme Court was rife with tension and eight of the Supreme Court justices were locked in a stalemate with Justice Kennedy, the swing vote, issuing a solitary opinion.

Justice Antonin Scalia's opinion, joined—without comment—by Chief Justice John G. Roberts Jr. and by Justices Clarence Thomas and Samuel A. Alito Jr., relied very heavily on a definition of water from a 1954 dictionary and called for a restriction on how wetlands are defined and for dramatically reducing the strength of the Clean Water Act.

The opinion of the other four, including Justice John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, seeks to keep the definition and protection the Army Corps of Engineers has followed for more than three decades under the Clean Water Act. It accused the Scalia four of "antagonism to environmentalism," and that the "overall tone and approach" of the Scalia four "seems unduly dismissive of the interests asserted by the United States in these cases" and "needlessly jeopardizes the quality of our waters."

For more information, read an article from The New York Times.