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The first time he takes the bench later this month, new Supreme Court Justice Samuel Alito Jr. will face a baptism � not by fire but by water. Three cases challenging the scope of the Clean Water Act will be argued Feb. 21, testing themes of federalism and commerce clause power that were much at issue during Alito’s confirmation hearings. The cases have environmentalists worried about how Alito and Chief Justice John Roberts Jr. will ultimately come down. “These are probably the most important environmental cases in a decade and will be an enormous test of the two new justices,” says Douglas Kendall of the Community Rights Counsel, which filed a brief in two of the cases. Alito has plenty of reading to do; more than 50 briefs on the cases have flowed into the Court. After being sworn in officially at the Court, on Jan. 31 at a private ceremony, Alito settled into the chambers his predecessor, Justice Sandra Day O’Connor, vacated last month in anticipation of retirement. His staff is still in flux, but he has already picked up two O’Connor law clerks, Benjamin Horwich and Alexander Volokh. Late Friday, Alito announced he would adopt the Court’s 1993 policy on recusals in cases involving close relatives who are lawyers � in Alito’s case, sister Rosemary, a partner at Kirkpatrick & Lockhart Nicholson Graham in Newark, N.J.
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The environmental cases, more than any other coming soon, will spotlight issues that got Democrats upset during Alito’s contentious hearings last month. In two of the cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, the issue is whether, under the commerce clause, the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters covered by the law. In the third case, S.D. Warren Co. v. Maine Board of Environmental Protection, the justices will decide whether the mere fact that a river flows through a dam produces a “discharge” that triggers federal jurisdiction under the act. In all three cases, the Bush administration is arguing for a broad view that would preserve a “landmark” law that is “a permissible exercise of Congress’ power,” in the words of Solicitor General Paul Clement, who will argue the cases himself. In Rapanos and Carabell, the cases that have gotten the most attention on both sides, environmental groups say a loss would strip federal jurisdiction from between 50 percent and 99 percent of the waterways currently covered by the law � a level not seen “since the McKinley administration,” says Howard Fox of Earthjustice. On the other side, conservative and business groups cast the dispute as a property rights battle against overriding federal regulation. “Agency bureaucrats are exploiting an ambiguity in the law to run roughshod over property owners,” says Reed Hopper, the Pacific Legal Foundation lawyer who represents Michigan developer John Rapanos in his case. “The Clean Water Act authorizes federal regulation of navigable waters, not every wet spot in the nation.” DIGGING UP BONES 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. The WLF also cites Rancho Viejo v. Norton, the “hapless toad” case in which Roberts, as a D.C. Circuit judge, said congressional commerce power did not extend to protecting California’s arroyo toad under the Endangered Species Act. Mark Perry, a D.C. partner at Gibson, Dunn & Crutcher who wrote the foundation brief, declines to discuss specific justices but says the cases before the Court pose “starkly different visions of federal power.” Perry’s brief may also be the first � and only � to invoke the animated movie “Finding Nemo.” He cites a scene in which Nemo the fish is swirling down a dentist’s drain. “Don’t worry. All drains lead to the ocean,” the character Gill says to reassure everyone that Nemo is safe. Perry accuses the government of adopting the same principle to justify regulating every conceivable body of water. “I was watching the movie with my two kids and I thought, That actually describes what’s going on here,” says Perry.

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Rapanos has been trying for nearly 20 years to build a shopping center near Midland, Mich. His sites were deemed to be wetlands, but Rapanos � arguing that the nearest navigable water is 20 miles away � began construction without permits. The Environmental Protection Agency ordered him to halt the work and eventually brought criminal charges against him. After years of litigation, the U.S. Court of Appeals for the 6th Circuit ruled that any “hydrological connection” between his property and navigable waters was sufficient to establish Clean Water Act jurisdiction. Similarly, June Carabell sought to build condominiums on forested wetlands in Macomb County, Mich. She applied for a fill permit, but the Army Corps of Engineers turned her down. Rapanos claims the government’s broad definition of the act’s reach unconstitutionally disturbs the traditional “division of labor” that allows states to regulate “upstream” sources of pollution while the federal government takes care of larger navigable waters downstream. STATE ACTIONS But two-thirds of the states have joined briefs advising the Court that they want federal protection. Eliminating federal jurisdiction over the wetlands at issue would “pull the rug out from under state officials and leave a regulatory void that the states could not easily fill,” says Kendall’s brief on behalf of an association of state pollution-control administrators nationwide. A similar plea from states did not persuade the Court in the 2000 case United States v. Morrison to uphold federal powers granted by the Violence Against Women Act, but Kendall thinks the federal role in helping prevent water pollution is more deeply rooted. Utah and Alaska joined a brief arguing against the federal role in Rapanos. In the third Clean Water Act case, the S.D. Warren Co., owner of five hydroelectric dams on the Presumpscot River in Maine, challenges the need to obtain state licenses for the dams � a process that is triggered if they produce a “discharge” under the Clean Water Act. The dams are already licensed by the Federal Energy Regulatory Commission. The company, joined by business and power-industry groups, claims that the dams add nothing new to the water; thus they do not produce a discharge. In a brief for the Edison Electric Institute, Jeffrey Fisher of Davis Wright Tremaine says state regulation triggered by the federal law is “unnecessary and duplicative.” Environmental groups counter that hydroelectric dams do alter the water and have strong environmental effects. “Dammed from stem to stern, the river has witnessed a profound decline in water quality and the consequent extirpation of its once prodigious sea-run fishery,” states a brief filed by the American Rivers organization and a group called Friends of the Presumpscot River. The brief’s author, Georgetown University Law Center professor Richard Lazarus, added a historical note that may catch the justices’ eye. Samuel Warren, who founded the company that built the dams, was the father of Samuel Warren Jr., the law partner of Louis Brandeis before Brandeis became a justice. Warren and Brandeis co-wrote the famous 1890 Harvard Law Review article that articulated a right to privacy. How will Alito view the cases? His track record on environmental law was not mentioned prominently during his confirmation hearings, and a study by the Congressional Research Service concluded that his rulings were “based on straightforward readings of statutes and regulations, with little disposition to infer rights or duties not clearly stated.” The CRS study found that Alito took the pro-environment side in half of the 20 cases he ruled on in which there was a clear environmental side. But the study did point to other cases, including Rybar, in which Alito’s positions indicated a narrow view of standing and commerce power � touchstones for most environmental litigation. Alito’s biggest Clean Water Act ruling was Public Interest Research Group of New Jersey v. Magnesium Elektron Inc., a 1997 case in which Alito joined a 2-1 majority that found that neither the PIRG nor Friends of the Earth had standing to challenge the company’s illegal discharges into a creek that leads to a river. His rulings on the bench led major environmental groups to oppose Alito. “Judge Alito’s record is more troubling than either Judge Roberts’ or Harriet Miers’,” Earthjustice concluded. Just how the rest of the Court will react to Alito’s commerce clause views is uncertain. While in the Rybar case, Alito said he was following the then recent Supreme Court precedent United States v. Lopez in rejecting congressional regulation of machine gun possession, the Court since then has sometimes taken a broader view of congressional power. In Gonzales v. Raich last June, the Court upheld federal regulation of medical marijuana against a commerce clause challenge. Soon after that ruling, the Court vacated and remanded back to the 9th Circuit the case of United States v. Stewart � the only appeals court decision that agreed with the view of the machine gun law that Alito expressed in Rybar.

Tony Mauro can be contacted at [email protected].

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