Reuters Misreports "Clean Water" Decision

Reuters:

US court fails to decide wetlands regulation issue

A splintered U.S. Supreme Court failed on Monday to decide whether the federal government can regulate wetlands away from navigable waters in a case that provided the first indication of anti-environmentalist views by President George W. Bush's two appointees.

Bloomberg:

Clean Water Act Reach Limited: U.S. Supreme Court Overview

The U.S. Supreme Court limited the reach of the Clean Water Act, saying it applies only to wetlands with a close connection to a river, lake or some other major waterway.

Notice the difference yet?

Reuters:

By a 5-4 vote, the justices set aside a U.S. appeals court ruling that upheld the government's authority to regulate the specific wetlands at issue and sent both cases back for more hearings.

While the court did not decide the issue at the heart of the case, it was the first indication of anti-environmentalist views by Bush appointees Chief Justice John Roberts and Associate Justice Samuel Alito on a significant environmental issue.

Bloomberg:

The justices, voting 5-4, ordered a new round of hearings for two sets of Michigan landowners whose efforts to build on their property have been stymied by the U.S. Army Corps of Engineers. The majority was divided in its reasoning, with Justice Anthony Kennedy refusing to join four other justices in putting even more restraints on the federal regulators.

Kennedy's separate opinion now becomes the controlling law. He established a new test, saying the Corps can regulate only wetlands that have a "significant nexus'' to a major waterway. He also said that in both cases before the justices, the Corps had at least some evidence of that type of connection.

In what is currently a case of statutory interpretation (apparently turning on the meaning of the word "adjacent"), the Reuters report does a disservice to readers. Only Justice Kennedy supports the Kennedy test, but as a practical matter it is the law for now.

Reuters:

The two cases generated five separate opinions from the nine members of the high court.

Bloomberg:

Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Clarence Thomas joined Scalia's opinion. The case marked the first environmental test for the court's newest justices, Roberts and Alito.

Reuters does not explain that Scalia's opinion represented four justices (as did Stevens' dissent), implying a much more fragmented Court.

Bloomberg also reports on a much more important question:

"The court is clearly troubled by the federal government's view that it can regulate every pond, puddle and ditch in our country,'' said Reed Hopper, a Sacramento, California, lawyer who represented landowner John Rapanos in one of the cases. "We are encouraged by this decision and believe it represents a good first step toward common sense regulation.''

In focusing on the meaning of the Clean Water Act, the court didn't decide a more far-reaching question presented by the case -- whether Congress has power to regulate those wetlands under the Constitution's Commerce Clause.

Under the Commerce Clause, any waterway that cannot be used for interstate commerce should fall outside of Congressional authority. That's a question of following the Constitution, not environmentalism.

In a better article, the Washington Post includes a good summary of the near-majority opinion:

In his opinion, Scalia wrote scathingly of federal regulators, saying they have gone too far in expanding the definition of "waters of the United States" over which they have jurisdiction.

The Corps of Engineers "exercises the discretion of an enlightened despot" in deciding whether to grant or deny permits to build on wetlands, and the average applicant for an individual permit has to spend more than two years and $270,000 to complete the process, Scalia said. The result is that more than $1.7 billion is spent each year by the private and public sectors to obtain wetlands permits, he said.

The case against Rapanos illustrates "the immense expansion of federal regulation of land use" under the Clean Water Act without any actual change in the law, Scalia wrote. In the past 30 years, he said, the Corps and the Environmental Protection Agency have interpreted their jurisdiction over "the waters of the United States" to cover up to 300 million acres of "swampy lands," including half of Alaska and an area the size of California in the lower 48 states.

He said the Corps "has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit" through which rainwater or drainage may flow, even occasionally or intermittently. The definition of "waters of the United States" thus has come to include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years," Scalia wrote.

In applying the definition so broadly, he said, "the Corps has stretched the term 'waters of the United States' beyond parody."

And it is opposing that extraorginabuse of power that Reuters labels "anti-environmentalist."