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Public Radio's Environmental News Magazine (follow us on Google News)

Whither the Waterways

Air Date: Week of

On Tuesday the Supreme Court will hear two clean water cases. Protection for more than half the country's wetlands is the issue. Host Jeff Young speaks with David Savage, a reporter for the Los Angeles Times about what’s at stake.


YOUNG: It’s Living on Earth. I’m Jeff Young. On February 21 the US Supreme court will hear the first arguments on an environmental case since swearing in justices Sam Alito and John Roberts. And protection for more than half the country's wetlands could be at stake. The court combines two cases from Michigan, Carabell vs. United States and US vs Rapanos. Both concern whether the Clean Water Act applies to wetlands and small streams. Reporter David Savage covers the Supreme Court for the Los Angeles Times and he’s with us now to talk about these cases. David, welcome.

SAVAGE: Good to be with you.

YOUNG: Tell me a little about the history of this case. Who is Mr. Rapanos? What’s he like? And what’s his beef here?

SAVAGE: Well Mr. Rapanos is a landowner and developer who had a series of pieces of land in Michigan that he wanted to sell off for building shopping centers and whatnot. Some of that land was low-lying wetlands. The federal law basically says you need to get a permit before you fill in a wetland; Mr. Rapanos said, no way, this is my land. He went ahead and filled in the wetlands on his own. He was then charged with a violation of the law and fined, and that incidence sent this case on the way to the Supreme Court.

YOUNG: So as things are now, how is it that the Clean Water Act applies to places like his property there? These wetlands and other small waterways.

SAVAGE: In 1972, when Congress passed the Clean Water Act, it essentially said it is illegal to discharge pollutants into the navigable waters of the United States. And since water flows downhill, federal regulators have taken the views that any river, stream, tributary, wetland or any other wet area that sends water down towards – in this case, the Great Lakes – can be regulated. You can’t put pollutants into some tiny stream, because eventually that pollutant is gonna run into the Great Lakes or Mississippi River. So the federal government has maintained that its jurisdiction extends to all these inland wetlands and streams.

YOUNG: So if Mr. Rapanos and his allies here are successful, what might change?

SAVAGE: Well I suppose the broadest challenge is one that says the law only applies to the navigable water bodies. That is, you may not put pollutants into the Great Lakes, but the law doesn’t extend 20 miles or 30 miles inland to parts of Michigan. That would be a huge change in the law because that would mean about 95 percent of the tributaries and streams are not protected by the Clean Water Act.

Another possibility is that they may say something like a wetland is not covered unless there’s evidence that polluting it, or filling it, would have some substantial impact on a navigable body of water. And if the Supreme Court were to say that, there are hundreds of thousands of acres of wetlands that would no longer be protected by the EPA or the Army Corps of Engineers.

YOUNG: This is the first big environmental case that these new justices on the court – Justice Roberts, Justice Alito – will be hearing. Are you hearing any scuttlebutt about how they might likely decide on this?

SAVAGE: There’s two ways to read that. One is that both Alito and Roberts, as lower court judges, did have this view that the federal jurisdiction is not unlimited; we ought to put limits on how far the federal government can go. Leaning the other way is that the Bush administration is arguing on the side of the environmentalists. So depending on which way they lean – that is, you know, I could imagine them having the view that this may be the time to put a limit on federal power. On the other had, they’ve got the Bush administration saying here’s why you shouldn’t limit the law.

YOUNG: Who’s arguing for Mr. Rapanos?

SAVAGE: Well he’s being represented by the Pacific Legal Foundation, which is in Sacramento. It’s a property rights group. The Pacific Legal Foundation, for 15 or 20 years, has been arguing for limits on federal regulatory laws, and sort of a revival of the property rights movement. And they’ve had sort of a mixed record. They’ve won on some counts and they’ve lost on a lot of others.

YOUNG: So the property rights movement has a lot riding on this. The environmental movement has a lot riding on this. How important do you think these arguments, this case, might end up being?

SAVAGE: I think it’ll be enormously important if the property rights movement wins on the broadest argument. That is, if the court were to say, we’re going to go back and read this law by its literal words, that is, you can’t put pollutants into a navigable body of water, and that’s all, then it’s an enormous change in the law. But the likelihood is that the Supreme Court wouldn’t go that far, but they may well say something that would greatly limit the federal authority to protect interior wetlands.

And then the question will be, well, what will the states do? You know, states could step in and impose the same kinds of very strict regulations. And my sense is some states are as vigilant as the federal authorities in protecting their wetlands, but some aren’t. And so it will play out differently in different states and different parts of the country.

YOUNG: Well, we’ve been talking with David Savage of the Los Angeles Times. Thanks very much for your time.

SAVAGE: Glad to be with you.



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