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According to the Associated Press, the U.S. Supreme Court set the stage for what could be a landmark ruling on federal government authority to regulate wetlands and control pollution. On October 11, 2005, the Justices agreed to take up claims in a case involving the issue as to whether regulators have gone too far by restricting development of property that is miles away from a river or waterway.
The key question to be decided, and weighed in upon by the newly appointed Chief Justice John Roberts, is whether the federal government is properly asserting jurisdiction over wetlands that may be part of a drainage area or tributary system but do not abut the "navigable waters" of the United States, referred to in the Federal Clean Water Act.
In accepting these cases, the Supreme Court did not accept the position of the Bush Administration, which filed a brief with the Court advising that core federal interests were at stake, and urging the Court to let stand without review lower court rulings that upheld the federal government's authority over these wetlands.
With more than 100 million acres of wetlands in the contiguous United States, totaling an area as large as California, the stakes are high with potential implications on government authority in regulating construction in obviously environmentally sensitive areas, such as parts of Louisiana and Mississippi recently decimated by Hurricane Katrina, and even land that is not adjacent to water.
Currently, the Army Corps of Engineers regulates work on wetlands which are naturally home to many plants and animals. There have been some complaints as to the definition of wetlands by various conservative groups as being so broadly drawn that even dry desert areas of Arizona are being designated as wetlands.
Environmental cases heard by the Court have been indecisive. Specifically, in 2002, Justices deadlocked 4-4 in a case that asked whether farmers should have more freedom to work in wetlands. In a 2001 decision, the Court voted 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. As an appeals court judge, Justice Roberts suggested in 2003 that federal powers are limited. He urged the appeals court to reconsider his decision restricting a San Diego area construction project because it encroached on the habitat of the rare Arroyo southwestern toad. The 1972 Clean Water Act, involved in the Supreme Court cases, draws much of its regulatory authority from the portion of the Constitution that gives Congress power to regulate commerce between the states. The same legal reasoning underpins federal, environmental and civil rights protections, with certain outcomes in these cases possibly affecting more than land regulations.
The Justices are set to review a pair of cases involving projects in Michigan, one that is one mile from a lake, and the second that is 20 miles from a navigable river. As some previous environmental appeals have been so close, the outcome of these cases could arguably rest with the person who replaces Justice Sandra Day O'Connor, who remains on the bench pending her replacement. These environmental issues may be the first glimpse of Justice Roberts' judicial philosophy.
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