The New York Times
www.nytimes.com

By LINDA GREENHOUSE

January 10, 2001

Overturning a 15-year-old environmental regulation, the Supreme Court ruled today that the Clean Water Act does not authorize the federal government to regulate the dredging and filling of isolated ponds and wetlands.

Depending on how future rulings define "isolated," the 5-to-4 decision could remove 20 percent of the country's waters from federal protection. It leaves in place federal regulation of wetlands that, while not actually navigable themselves, abut navigable rivers or their tributaries, an interpretation of the Clean Water Act the Supreme Court upheld in 1985.

The decision was based on an interpretation of Congressional intent rather than on a conclusion about constitutional limits on Congressional power. But the ruling was nonetheless very much a part of the court's ongoing federalism debate, with the majority observing that the authority that the Army Corps of Engineers claimed over isolated waters would, if upheld, "result in a significant impingement of the states' traditional and primary power over land and water use."

For that reason, Chief Justice William H. Rehnquist said in his opinion for the court, Congress should not be understood to have granted the agency this degree of authority in the absence of a "clear statement" to that effect. He said there was no such statement in the Clean Water Act, a 1972 law that gives the Army Corps jurisdiction over dredging and filling of "navigable waters."

In a dissenting opinion, Justice John Paul Stevens said the regulation was a "manifestly reasonable" interpretation of the Clean Water Act and was therefore entitled to the deference the Court usually gives to executive branch agencies' interpretations of their statutory authority. There was no reason to inject "the specter of federalism," he said.

The division on the court was a familiar one: Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion, while Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the dissent.

Environmental advocates said that because few states protect isolated waters and wetlands, the decision today had removed an important tool from regulators. Timothy Searchinger, senior attorney with the group Environmental Defense, which filed a brief in the case, said that while the ruling "sounds modest and procedural," it actually offered a road map for the court to "strike down environmental rules it doesn't like," because Congress often uses broad language that the court could find insufficiently specific.

Carol M. Browner, administrator of the Environmental Protection Agency, which administers the Clean Water Act with the Army Corps of Engineers, said the ruling would "make it even more difficult to effectively protect against the loss of wetlands," which she said were important for flood control and as natural filters as well as for wildlife habitat.

The regulation the court invalidated was known as the migratory bird rule, because it asserted jurisdiction over waters that were or could be used by birds that cross state lines or that are protected by international treaties. The Army Corps of Engineers, which issued the regulation in 1986, invoked it in 1994 to block a landfill project on an abandoned strip mine in northeastern Illinois.

The old strip mine had partly returned to forest, with the depressions left by the mining operations having turned into ponds that became a breeding ground for great blue herons. More than 100 species of birds had been seen at the site, which was bought in 1990 by a consortium of 23 municipalities, to use for disposing of solid waste. The project was approved by local and state agencies before the Army Corps, deciding that the migratory bird rule gave it jurisdiction, denied a permit.

The Illinois consortium sued in Federal District Court in Chicago on the ground that the Army Corps lacked jurisdiction over isolated waters. The consortium lost in the district court in 1998 and the next year in the United States Court of Appeals for the Seventh Circuit, which rejected the argument that the exercise of authority over isolated, intrastate waters exceeded Congress's authority to regulate interstate commerce. In the aggregate, the money that millions of people spend every year viewing or hunting migratory birds has a sufficiently substantial effect on commerce, the Chicago-based appeals court said.

But that constitutional theory looked doubtful after the Supreme Court last year struck down the Violence Against Women Act that rejected the argument that the aggregate economic effect of acts of violence against women had a substantial effect on commerce.

The court's decision last May to hear the Illinois consortium's appeal in this case, Solid Waste Agency v. United States Army Corps of Engineers, No. 99-1178, offered the prospect of a broad constitutional ruling that could cast doubt on an array of federal regulations. From the majority's point of view, that did not prove necessary. Chief Justice Rehnquist said the court interpreted the Clean Water Act "to avoid the significant constitutional and federalism questions raised" by the government's defense of the regulation.

The decision more than satisfied opponents of the migratory bird rule. George Van Dusen, the mayor of Skokie, Ill., and chairman of the consortium, said today that an opposite ruling "would have transformed the Army Corps of Engineers into a super zoning agency with land use authority over vast tracts with the power to block any projects approved by local or state agencies."

The current Supreme Court term offers several additional opportunities for the court to scrutinize federal environmental regulations. A pending petition, Gibbs v. Babbitt, No. 00- 844, challenges the constitutionality of a regulation issued under the Endangered Species Act that prohibits people from harassing, capturing or killing red wolves, currently being reintroduced into a federal wildlife refuge in North Carolina, that wander onto private property.

In another action today, the Supreme Court heard arguments in a case challenging the constitutionality of a federal immigration law that makes it easier for illegitimate children born overseas to American mothers to be deemed United States citizens than for children whose American parent is the father. The law requires American fathers to acknowledge paternity and promise support before the child is 18 in order for the child to be deemed a citizen, while those requirements are not placed on American mothers.

In a similar case three years ago, a majority of the court indicated that the different treatment violated the constitutional guarantee of equal protection, but several found a procedural problem in that case. The case today, Nguyen v. Immigration and Naturalization Service, No. 99- 2071, was brought by a Vietnamese- born man and the American father who raised him but did not formally acknowledge paternity until the son was in his 20's and facing deportation after a criminal conviction.