SCOTUS And The Clean Water Act
by Scott Shields, Wed Feb 22, 2006 at 08:49:24 AM EST
A great deal of attention is being paid to the fact that the Supreme Court is set to hear a case regarding the constitutionality of a ban on some abortions. It's understandable, as it will be the first high-profile test of Bush's new Supreme Court on the question of choice. However, having already resigned myself to the idea that the Roberts court will likely chip away at the right to choose, I think there's another case that will also tell us quite a bit about the direction of the court.
It's long been a tenant of many on the judicial right that the federal government does not legitimately have the authority to regulate the environment. So I'm particularly interested to see how the court will rule on these challenges to the Clean Water Act. In both cases, Carabell v. U.S. Army Corps of Engineers and Rapanos v. U.S., developers (of condominiums and a shopping mall, respectively) are claiming that the Clean Water Act cannot be applied to wetlands that feed tributaries of the "navigable waters" expressly protected by the law. The rightist talking point on this is that the Clean Water Act can't be applied to "every wet spot in the nation." Unsurprisingly, that language comes directly from the Federalist Society. But as Jim Murphy, of the National Wildlife Federation says, the argument is akin to "saying that you cannot cut down a tree, but are free to poison its roots."
As of yesterday, with Roberts and Scalia vigorously mocking the scope of the Clean Water Act, Alito had only asked one question. It fit in with the line of questioning coming from his colleagues on the right, questioning what would constitute a tributary. Now, one probably can't glean too much based on one question. But if Alito's record tells us anything, it's that he's likely to side with the deregulators on this issue.
A sure sign of the importance of Alito and Roberts is that one anti-regulation brief, by the conservative Washington Legal Foundation, pointedly cites appeals court writings by both justices that support a narrow view of the commerce clause.
The brief reminds Alito and the rest of the Court of his 1996 dissent as a 3rd Circuit judge in United States v. Rybar, the so-called machine gun case, that Alito was repeatedly quizzed about at his hearing. Alito argued that Congress did not have authority to ban possession of machine guns, and the foundation hopes he will rule the same way on Clean Water Act coverage.
It's worth noting that Sandra Day O'Connor also skewed slightly right on the Clean Water Act. In 2000, in Friends of the Earth v. Laidlaw Environmental Services she agreed citizens could sue for enforcement of the Clean Water Act. But then in 2001, in SWANN v. U.S. Army Corps of Engineers she sided with the majority in an opinion that limited the act. In both cases, Scalia and Thomas lined up against the Clean Water Act. I'm expecting the worst here from Alito and the increasingly rightist Supreme Court. Here's hoping I'm wrong.