Wetlands cases could show which way Roberts will lean

WASHINGTON – The Supreme Court set the stage Tuesday for what could be a landmark ruling on government authority to regulate wetlands and control pollution, giving new Chief Justice John Roberts his first chance to limit federal regulation of property rights.

The justices agreed to take up claims that regulators have gone too far by restricting development of property that is miles away from any river or waterway.

With more than 100 million acres of wetlands in the contiguous United States, a total as big as California, the stakes are high, the justices were told.

The outcome could have implications for government authority in regulating construction in obviously environmentally sensitive areas, like Hurricane Katrina-decimated parts of Louisiana and Mississippi, and even land that is not adjacent to water.

The Army Corps of Engineers regulates work on wetlands, which are home to many plants and animals.

“They define wetlands so broadly that even dry desert areas of Arizona are being called wetlands,” said Paul Kamenar, a lawyer with the Washington Legal Foundation, one of the conservative groups that called on the court to intervene.

The Bush administration had urged the court to stay on the sidelines.

The Government Accountability Office reported Tuesday the corps generally declines to regulate small, isolated wetlands within a single state, based on the administration’s interpretation of a 2001 Supreme Court ruling. The corps also fails to document a reason for its decisions up to half the time, said the GAO, Congress’ investigative arm.

Environmental cases have been divisive at the court. In 2002, justices deadlocked 4-4 in a case that asked whether farmers should have more freedom to work in wetlands. In the 2001 case, the court split 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.

Environmentalists have been worried about how Roberts will vote in such cases.

As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a San Diego-area construction project because it encroached on the habitat of the rare arroyo southwestern toad.

The 1972 clean water law involved in the Supreme Court cases draws much of its regulatory authority from the part of the Constitution that gives Congress power to regulate commerce between the states. The same legal reasoning underpins federal environmental and civil rights protections, so the outcome of these cases could affect more than land regulations.

Justices will review a pair of cases involving projects in Michigan, one that is one mile away from a lake, and a second that is some 20 miles from a navigable river.

Because some previous environmental appeals have been so close, the outcome of these cases could rest with the replacement for Justice Sandra Day O’Connor, who is retiring.


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