January 9, 2001

5:10 PM

Supreme Court limits federal control over "wetlands."
Ruling that not only does the Clean Water Act not support such control, but that it would be unconstitutional anyway, the court removed the Army Corps of Engineers' authority over isolated wetlands such as ponds and mudflats. [more]
posted by daveadams (11 comments total)

Partisan Supreme Court emboldened by Bush theft.Note the 5 to 4 split, just like Bush v. Gore.
posted by Mr. skullhead at 5:13 PM on January 9, 2001

Excellent news. The Democratic Era of stretching laws far beyond their original intent really is coming to a close.
posted by aaron at 5:14 PM on January 9, 2001

Why are the 5 partisan and the 4 not, Mr. Skullhead?
posted by aaron at 5:15 PM on January 9, 2001

It seems logical, to me, to conclude that the Commerce Clause wouldn't give the federal government authority over isolated "wetlands" that aren't navigable and therefore directly under the heading of "interstate commerce." The Corps tried to rationalize its position because the migratory birds which are attracted to standing water or swampy land in turn attract birdwatchers, potentially from other states, a billion-dollar industry--therefore, interstate commerce.

The Corps often has used its power to force reroutes of highways, preserve large portions of land in greenfield developments (usually in suburbs), protect floodplains from development, etc. etc.

I think a common sense approach to such a policy is reasonable and necessary, but often the Corps went overboard with its reasoning, causing undue delay and expenses in many development projects. Surely the states are better prepared to decide to protect or not protect their own land.

In fact, it surprises me that the court wasn't more unified on this issue.
posted by daveadams at 5:16 PM on January 9, 2001

Of course, this doesn't apply to the EPA, and anyone wanting to drain a swamp still has to file an Environmental Impact Statement.
posted by Steven Den Beste at 5:30 PM on January 9, 2001

I have no problem with this decision because for me it emphasis the split that has long been developing in our nation, as evidenced by the Supreme Court, a miniature representation (at this point) of the split.
One poster stated that 5 to 4 is no more partisan than 4-5 but the poster of the 4-5 did not say it was partisan. Obviously it is a reflection of the way one views matters, either taking the conservative or the liberal approach, the view that the federal govermnment should be superior in most matters or that the states should do things their way.
I have tried with some dcare to avoid being partisan on this but want soley to point to the growing divide in the nation.
posted by Postroad at 5:44 PM on January 9, 2001

Why are the 5 partisan and the 4 not, Mr. Skullhead?

majority: "partisan"minority: "oppressed"cf. bipartisanship: the other guy gives in
(Both the left and right are guilty of these linguistic abuses.)

posted by jplummer at 5:46 PM on January 9, 2001

The Democratic Era of stretching laws far beyond their original intent really is coming to a close.

There have been federal laws on the books regarding the protection of migratory birds for 80 years. In the 1920 case Missouri vs. Holland, the U.S. Supreme Court ruled that the protection of migratory birds was "a national interest of very nearly the first magnitude" and that the Migratory Bird Treaty Act (affecting birds crossing between Canada and the U.S.) was constitutional.

A longer quote from the decision:

"Here a national interest of very nearly the first magnitude is involved. ... The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld."


posted by rcade at 6:43 PM on January 9, 2001

Feh. Who needs fresh water, anyway?
posted by dhartung at 7:46 PM on January 9, 2001

Disclaimer: I actually live in Evanston, one of the communities that was bidding to build this particular landfill. There is a narrow issue here and a broad issue. The communities, North Shore Chicago full of environmental liberals, would have preferred a ruling on the narrow issue: that local communities have the greater wisdom on environmental issues like this, and in this case, not only was the importance of the landfill greater than the environmental protection justification, but the landfill was intended to successfully swap land to create equal or greater wetlands (roughly, I'm not going blogging on this tonight).

Unfortunately, as had been feared, the Supremes' majority ruling was on the broader issue: that the legal authority of the Corps was invalid in the first place. This will have grave consequences for environmental protection, whether or not the Corps was in the right or wrong on this one.
posted by dhartung at 7:50 PM on January 9, 2001

U.S. Supreme Court ruled that the protection of migratory birds was "a national interest of very nearly the first magnitude"

This is why we should dismantly virtually the entire federal government and channel all those resources into the U.S. Fish & Wildlife Service, since that's the agency with the greatest impact on this "first magnitude" interest.

And Dan, the U.S. Army's loss of its authority to santion the dumping of dirt into mud puddles will in no way impact the cleanliness of drinking water. Steven's shrill dissent which alleges that it will merely demonstrates that he's finally gone off the deep end and it's time for him to retire. Why he failed to do so a year ago under Clinton still baffles me.
posted by mikewas at 1:03 PM on January 10, 2001