Wednesday, July 5, 2006
The World Cup of Wetlands Law: Turtles-0, Developers-1
Professor and Hevelone Research Chair, University of Nebraska College of Law
Member Scholar, Center for Progressive Reform
In one of the most anxiously awaited decisions this session, the Supreme Court struck a blow against environmental protection by ruling for a couple of commercial developers. The issue in play in Rapanos v. United States: can federal protection be extended to small tributaries and wetlands near, but not directly abutting, navigable waters? The lower court officials said yes, but the Supreme Court referees, in a 4-1-4 split decision, disagreed and vacated the judgments against the developers.
The lead opinion by Justice Scalia, joined by Justices Roberts, Thomas and Alito, would clear the way for development of most wetlands and streams. According to the Court’s most conservative members, the regulation of non-perennial streams, wet meadows and arroyos under the federal Clean Water Act stretches the law’s coverage “beyond parody.” But as the dissent by Justices Stevens, Souter, Ginsburg and Breyer noted, as the wetlands and their inhabitants go, so goes the entire watershed. The Scalia opinion, they argued, is nothing but blatant “antagonism to environmentalism.”
Justice Kennedy concurred in the Court’s judgment but not in its reasoning. He opined that, to come within federal protection, regulators must make a scientific determination that the wetland in question has a significant hydrological “nexus” to a navigable water body.
Justice Scalia cavalierly dismissed the dissenters’ concerns, saving his most heated rhetoric for Justice Kennedy. In a shot that would draw a “red card” in soccer, he accused Kennedy of misreading the Court’s prior decisions, hiding behind the statutory purpose of protecting water quality rather than adhering to the statute’s plain language, and then boot-strapping his conclusion by claiming that anything that might affect waters of the United States bears a “significant nexus” to those waters and thus is those waters.
In a parting shot, Scalia disparaged Kennedy’s logic as unsubstantiated “turtles all the way down.” The turtle metaphor refers to a fictional exchange between an astronomer and a little old lady in a lecture hall. The astronomer described how the Earth orbits around the sun. The lady remarked: "That’s rubbish. The world is a flat plate supported on the back of a giant tortoise." When the astronomer, humoring her, asked what the tortoise was standing on, the lady replied, “Why, it's turtles all the way down.”
The irony of Scalia’s metaphor is palpable. According to Conservation International, 40-60% of all turtles in the world face extinction. United States’ populations reflect this trend: around half of our turtle species are imperiled. Freshwater fishes are in equally bad shape. The primary culprit: habitat loss. In the last 200 years, the U.S. has lost over half of its original wetlands, the equivalent of 60 acres of wetlands every hour. California, Iowa and Ohio have fared even worse than average – 90% of their wetlands have been lost to development.
If Scalia had convinced Justice Kennedy to join in his opinion, many – in fact, most – wetlands and streams would be excluded from federal protection. Many of the remaining wetlands are not adjacent to navigable waters, and the National Hydrology Dataset shows that nearly 60% of the total stream miles in the U.S. are non-perennial. In arid western states like Arizona, Utah and New Mexico, the figure is much higher: 80-90% of their streams flow only in wet weather.
Will states step up to the plate? It seems unlikely. Although Justice Scalia expressed his concern for preserving “primary state responsibility for ordinary land-use decisions,” 33 States and the District of Columbia filed “friend of the court” briefs on behalf of the U.S., seeking to maintain broad federal jurisdiction over wetlands and tributaries. In their view, wetlands preservation – a political “hot potato” if ever there was one – is best accomplished by the feds.
Confusion reigns. The impasse between the most conservative justices who champion laissez-faire, pro-development interests under the guise of federalism and the moderates who believe that government can and should serve the public interest demonstrates a new level of acrimony on the Court. The result: an erosion of the goals of the Clean Water Act – chemical, biological and physical integrity – and, quite possibly, many other environmental laws.
Yes, it could’ve been worse for conservation interests. As a result of the split, Justice Kennedy’s concurring opinion will likely become the law of the land. But his opinion places the burden of proving a “significant nexus” squarely on the shoulders of the U.S. Corps of Engineers, who itself is experiencing a crisis of legitimacy in the wake of Hurricane Katrina. It isn’t unreasonable to question whether this beleaguered agency, subject to an array of contradictory statutory mandates from wetlands protection to dredging navigational channels and constructing flood control levees, is up to the task of going toe to toe with well-heeled developers in this resource-intensive, case-by-case fashion.
At least the U.S. soccer team’s tie with Italy was enough to keep it alive in the World Cup, albeit briefly. As a result of the Court's 4-4 "tie," the turtles (and wetlands) hang in the balance while more legal skirmishes ensue. Let’s hope that the Corps and the lower courts are vigilant referees.