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Rapanos & Carabell Decided:

SCOTUSBlog reports that a divided Supreme Court held this morning that Clean Water Act is limited. Justice Scalia wrote a plurality, with Justice Kennedy concurring (and providing the fifth vote). It appears to be a signficiant win for the petitioners, but the key will be how much Kennedy's opinion modifies Scalia's plurality. More to follow once I've read and digested the opinions.

UPDATE: From the Associated Press:

The Supreme Court ruled 5-4 Monday that regulators may have misinterpreted the federal Clean Water Act in refusing to allow two Michigan property owners to build a shopping mall and condos on wetlands they own. At the same time, justices could not reach a consensus on whether government wetlands protections extend miles away from waterways. . . .

The court voided rulings against June Carabell and John Rapanos, who wanted to fill their wetlands near Lake St. Clair in Macomb County. Carabell wanted to build condos on wetlands she owns about a mile from the lake. Rapanos wanted to put a shopping mall on his property, which is about 20 miles from the lake.

Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waters.

UPDATE: The opinions are now available here.

Hans Bader (mail):
I'm delighted that the justices rejected the government's overexpansive definition of wetland. Under its definition, most of the United States is absurdly defined as a "wetland" (because water occasionally trickles from most land in the United States to some place else that in turn eventually trickles into a river that eventually flows into the ocean or navigable waters).

My backyard would have been a wetland under the government's crazy definition, as would much of Arlington County, Virginia, the major suburban community where I live, and where many Supreme Court justices themselves have lived.

That would eventually result in massive amounts of red tape being imposed on development, land improvement, and renovation projects that pose virtually no risk of harm to the environment.

Surely a "wetland" should not include dry land which is already heavily populated. Nor should most of the United States be defined as a "wetland." Yet that would be the result of the government's bizarre definition.
6.19.2006 11:37am
GMUSL Rising 3L (mail):
YES!!! Fantastic -- Federalism is alive and well!!! I can't wait to read the opinions. Like Prof. Rotunda, "I find the Commerce Clause so tittilating that it's almost obscene."

But Scalia and AK are still on the hook for Raich.
6.19.2006 11:39am
johnt (mail):
I'll have to learn more about the opinions but as pointed out earlier, keep your eye on Kennedy. It is developing into a different ball game with Roberts as Chief Justice.
The decision will expand from the Mojave Desert that land protected from dew, sprinkles, and the reach of Wetlands.
6.19.2006 11:57am
Some Guy (mail):
Dumb wuestion, where are the opinions posted first? Couldn't find them on the SC website, is there another source?
6.19.2006 12:02pm
Anonymous reader (mail):
I was at the Court today and watched the decisions get announced. The Justices were very sassy to each other. Kennedy used the "significant nexus" case and specifically said that his approach was "closer to the dissent."
6.19.2006 12:15pm
egn (mail):
I wish federalism were "alive and well" with respect to a target other than one of the only pieces of federal legislation that's actually achieved some of its important ends...
6.19.2006 12:24pm
GMUSL Rising 3L (mail):
egn, you're also "actually achiev[ing]" a clean washbasin if you throw the baby out with the bathwater, which fittingly enough, is no longer covered by the Clean Water Act.
6.19.2006 12:32pm
wood turtle (mail):
That doesn't sound like a very clear decision. Are they sending it back to the lower courts to decide on the wetland issue?

It would make more sense if the law were changed to apply to all wetlands, with descriptions about vegetation types and water holding period as determining wetland type, rather than whether it is adjacent to a navigable water.
6.19.2006 12:49pm
Anderson (mail) (www):
Kennedy--he's the new O'Connor!

Unless and until one of the four "left" justices is replaced by a Republican appointee, the Court is going to be Kennedy's. Judging by his concurrences in Hudson and today's CWA cases, no one's going to have the least clue what the law actually is. Not good (tho, from this Dem's standpoint, better than clarity Scalia-style).
6.19.2006 12:53pm
LN:
another dagger in the leviathan! keep hacking away...
6.19.2006 1:12pm
Brett Bellmore (mail):

It would make more sense if the law were changed to apply to all wetlands, with descriptions about vegetation types and water holding period as determining wetland type, rather than whether it is adjacent to a navigable water.


It would make more sense if it were a state law, but the federal government needs SOME kind of pretext to base it's claim of regulatory authority on, being at least theoretically limited to the enumerated powers.
6.19.2006 1:25pm
Wombat:

Kennedy--he's the new O'Connor!

Uhh, Yes, from the day O'Connor announced her retirement (with Bush in office and the Republicans holding the Senate), everyone knew this was now the Kennedy court. Actually, it was known long before then; Rush and the Radio Right have long stated the need for 3 conservative appointments from Bush (one to replace Rehnquist, the other two to neutralize O'Connor and Kennedy.)

Frankly, I don't know if the conservatives are happier with O'Connor or Kennedy as The Decider, as Kennedy is more conservative over all, except when he's creating vast new social rights.

A more interesting question is, which does you prototypical Libertarian prefer?
6.19.2006 1:28pm
Medis:
By the way, it seems to me that Justice Steven's conclusion is right: "Given that all four Justices who have joined this opinion would uphold the Corps' jurisdiction in both of these cases—and in all other cases in which either the plurality's or Justice Kennedy's test is satisfied—on remand each of the judgments should be reinstated if either of those tests is met."

In other words, there are now two alternative rules, and satisfying either test should be sufficient.
6.19.2006 2:04pm
Medis:
Correction: "Stevens'".
6.19.2006 2:13pm
agog:
Hans)

I haven't followed this case aside from skimming the opinion. Based on that reading, however, it seems you're overstating the government's claim. There was no argument about whether the infilled sites were wetlands, the disagreement was whether the ephemerally filled ditches and drainages that connected those wetland sites were "waters of the United States". Thus, your post should read:


My backyard would have been a "water of the United States" under the government's crazy definition, as would much of Arlington County, Virginia, the major suburban community where I live, and where many Supreme Court justices themselves have lived.


Though equally absurd, this phrasing doesn't quite pack the same rhetorical punch.
6.19.2006 2:17pm
Thorley Winston (mail) (www):

A more interesting question is, which does you prototypical Libertarian prefer?


Neither, I have come to accept months ago that courts are a poor mechanism for trying to reign in government and anyone who relies on them is deluding themselves. So long as the overwhelming majority of citizens who elect legislators and chief executives at the federal and State levels want some form of the Nanny State, courts aren't going to second guess that decision (and if they did, they'd be overruled). IMO the best that a libertarian can hope for is to support policies (and candidates most likely to support said policies) that are more likely to enhance individual liberty and personal responsibility (e.g. entitlement reform, school choice, concealed carry reform, consumer driven health care reform, etc.).
6.19.2006 2:33pm
Anderson (mail) (www):
A more interesting question is, which does you prototypical Libertarian prefer?

Interesting to libertarians, I suppose.
6.19.2006 3:21pm
DC Lawyer (mail):
Sorry to bust your collective bubble, but this case affirms, though narrowly, the federal government's broad and legitimate interest in wetlands protection. Five justices would uphold most wetlands protections. Four would do so without any new balancing test. Kennedy would do so only if the wetland had a significant nexus to a navigable waterway, which can be easily demonstrated. Indeed, Kennedy's own opinion suggests that on remand Rapanos and Carabell could still lose.

I'll just note for the record that Hans Bader, in his rush to put his Competitive Enterprise Institute "spin" on the decision posted the identical message to SCOTUS Blog, obviously without having read the decisions. His take couldn't be more wrong, not only on the case, but on Arlington County, where I also live. Pretty shameful.
6.19.2006 3:29pm
Medis:
Thorley,

I think even supporting candidates who claim to favor libertarian principles is a bad bet for libertarians, since once people actually hold governmental power, they have an odd tendency to forget that they believe in limiting the power of government.

So, I think the real best bet for libertarians is divided governments.
6.19.2006 3:58pm
The Voice of Reason (mail):
I think the real best bet for libertarians is divided governments.

Spoken like someone who is not a real libertarian. A real libertarian would want like-minded libertarians in office. If you don't think a like-minded libertarian would act on principles, then you aren't a principled libertarian.
6.19.2006 10:32pm
The Voice of Reason (mail):
And, yes, all real libertarians are principled libertarians.
6.19.2006 10:33pm
Thorley Winston (mail) (www):
<


I think the real best bet for libertarians is divided governments.


Spoken like someone who is not a real libertarian. A real libertarian would want like-minded libertarians in office. If you don't think a like-minded libertarian would act on principles, then you aren't a principled libertarian.


Not to go too far OT but the "divided government" meme is based largely on a couple of years during the Clinton administration in which we had Newt Gingrich as Speaker and government spending was generally considered to be held in check. Proponents of it love to cite this example as "proof" that the "ideal situation" is to have at least one of the Houses of Congress controlled by a party other than the President's.

Of course the facts that (a) that was during a unique time of relative peace (as opposed to a time of war), (b) that the current explosion in nondefense/homeland security spending began when Democrats controlled the Senate (e.g. Tom Harkin's Farm Bill), (c) Democrats have been able to use the threat of a filibuster in the Senate to get higher levels of spending (e.g. Medicare Part D which went from about $137 Billion to $754 Billion), and (d) the largest fiscal problem facing the country is entitlement spending and Democrats are determined to block any entitlement reform that would control spending (as they did in the 1980's when we had "divided government" and they killed any meaningful Social Security reform and we got stuck with higher FICA taxes) are inconvenient facts to the proponents of the "divided government leads to smaller government" theory.

IMO the best bet is to vote for candidates who campaign on entitlement reform and get as many of them in office as possible. Which means electing Republicans and doing whatever it takes to break the backs of a Democratic fillibuster so that we can reform our two largest entitlement programs before the baby boom generation begins to retire and is vested in them thereby making entitlement reform that much more expensive and painful.
6.20.2006 12:30pm