"There is always a philosophy for lack of courage."—Albert Camus

Tuesday, June 20, 2006

Supreme Court: Not All Properties Are Wetlands

A wide variety of interpretations has already arisen regarding the Supreme Court's decision yesterday on federally enforced wetlands preservation. Two things seem clear, however: that the federal government may regulate human development of wetlands (which was not in doubt), and that the definition of what is a wetland cannot be stretched beyond reasonable bounds. This makes sense. Here is the libertarian Cato Institute's description of and opinion on the decision:

Supreme Court Rebuffs Senseless EPA Regulation
Supreme Court Sides with Cato Brief

WASHINGTON -- Today, the U.S. Supreme Court rebuffed an expansive reading of federal power by environmental regulators. In Rapanos v. United States, regulators claimed federal wetlands laws allow them to micromanage development of Michigan property through which a trickle of water drained, even though the land was high, dry, and land-locked. The landowner, John Rapanos, fought back, arguing that the federal Clean Water Act doesn't give regulators control over any land from which water might occasionally flow. In a 5-4 decision, the Supreme Court agreed.

According to Tim Lynch and Mark Moller, authors of Cato's friend-of-the-court brief in support of Mr. Rapanos, the Court reached the right decision: "If the government can regulate any land from which water occasionally drains, no matter how speculative the effect of this drainage on navigable water, wetlands law gives it almost limitless jurisdiction over private property, except perhaps in the heart of the Mojave desert. In essence, the federal government's reading of the Clean Water Act would turn the EPA into a vast national zoning board.

"The English language says otherwise. The Clean Water Act gives the federal government the power to protect navigable water and regulate some land 'adjacent' to navigable water -- not control every rivulet of water that trickles through your lawn. What's remarkable about this case is not the outcome -- but the government's ability to argue its reading of federal law with a straight face."


2 comments:

Francis W. Porretto said...

Dear God. Good sense from the Supreme Court? Excuse me please; I have to run out and buy a lottery ticket.

Tom Van Dyke said...

Taking Justice Kennedy's limp into the majority pool with his separate concurrence into account, FWP, it was more like 4 3/4 to 4 1/4.

Good sense does not come easily, or clearly.