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On a day that foreshadowed politically charged battles ahead, the Supreme Court on Monday divided sharply on the scope of the Clean Water Act while also agreeing to widen its review of the federal partial-birth abortion ban next fall. In the long-awaited Clean Water Act cases Rapanos v. United States and Carabell v. United States, Justice Antonin Scalia won three other votes for a narrow interpretation of the act’s scope, while Justice Anthony Kennedy concurred in the judgment but offered his own more sweeping interpretation � guaranteeing continued litigation. In Scalia’s view, the law requiring permits to fill “navigable waters” covers only “relatively permanent” streams, rivers, and lakes � not intermittent or merely “hydrologically connected” waters. However, Kennedy’s concurrence sketched out a much broader standard, one that would apply the law’s permit requirement to those seeking to fill any waters and wetlands with a “significant nexus” to navigable waters. Environmental groups seized on Kennedy’s concurrence as the controlling opinion and expressed relief that their fears of a substantial loss of Clean Water Act jurisdiction had not come to pass. “The ultimate effect of the Supreme Court’s decision on the Clean Water Act is to leave the Act’s protection of wetlands and other water bodies in place, but subject to proof that they do in fact have a �substantial nexus’ to downstream water quality,” said Tim Searchinger, lawyer with the group Environmental Defense, in a statement. “The decision kicks the ball down the road and will create some major administrative headaches, but in the end, the protection of this country’s water bodies should change little.” In cases where no opinion garners five votes, the opinion that concurs with the judgment on the narrowest grounds is usually regarded as the most important. The most famous example of this rule is the 1978 landmark affirmative action case Regents of the University of California v. Bakke, in which a concurrence by Justice Lewis Powell Jr. for himself alone was viewed as the controlling opinion in the case. “Environmental law now has its own Bakke,” said Georgetown University Law Center professor Richard Lazarus, who said the Kennedy concurrence controls the case because it rejects Scalia’s more sweeping reinterpretation of the law. The Clean Water Act cases were seen as the first test of the environmental views of the Court’s new justices, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. Both joined Scalia’s plurality opinion. Spectators in the Court chamber on Monday witnessed the rare sight of Scalia criticizing, from the bench, not only the dissent by Justice John Paul Stevens but also Kennedy’s concurrence for “ignoring the text” of the Clean Water Act. Kennedy and Stevens also summarized their writings from the bench. It is rare for a concurring justice to read from his or her opinion. Also on view was a dispirited liberal wing of the Court. Though Stevens, 86, read from his dissent vigorously, the justices who joined him � Stephen Breyer, David Souter, and Ruth Bader Ginsburg � appeared gloomy and fatigued. In the Clean Water Act cases, the Court seemed aware that its resolution of the case would satisfy almost no one. Roberts lamented that because no opinion commanded a majority of the justices, “lower courts and regulated entities will now have to feel their way on a case-by-case basis.” Dissenting Justice Stevens said the Scalia opinion “disregards the fundamental significance of the Clean Water Act” and trivializes its protection of wetlands adjacent to waterways. The cases before the Court involved two Michigan developers thwarted in their plans by environmental regulations. John 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. 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. The U.S. Court of Appeals for the 6th Circuit ruled against both developers and in favor of federal jurisdiction over the projects. The administration argued for the broader view of jurisdiction. The effect of Monday’s ruling is to return both cases to the 6th Circuit for review in light of the high court ruling. Scalia said it would be up to the lower courts to decide if the wetlands involved fit his definition of “possessing a continuous surface connection” with navigable waters. Kennedy said the lower court should use his “significant nexus” standard. And Stevens � noting that under his four-justice dissent, Army Corps of Engineers jurisdiction was guaranteed no matter which standard is used � said that the earlier circuit court rulings should be reinstated if either Scalia’s or Kennedy’s test is met. Lawyers opposed to the broad interpretation of the law were also heartened by the decision. “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 of the Pacific Legal Foundation, which represented Rapanos. “We are encouraged by this decision and believe it represents a good first step toward common sense regulation.” Also Monday, over the objection of the Solicitor General’s Office, the Court granted review in a second case that tests the constitutionality of the federal Partial-Birth Abortion Act of 2003. The Court has already docketed Gonzales v. Carhart, a Nebraska challenge to the same law based on the law’s omission of a “health exception” that allows the controversial procedure if needed to preserve the health of the mother. The new case, Gonzales v. Planned Parenthood of America, stemmed from a 9th Circuit ruling that struck down the law on the additional ground that it was unconstitutionally vague. In briefs filed with the Court, the administration appealed the 9th Circuit ruling but urged it to hold the case in abeyance pending a decision in the Nebraska case. The Court rejected the advice. The two cases are likely to be argued in tandem this fall, but no date has been set. The Court on Monday also issued two rulings that followed up on its landmark 2004 ruling in Crawford v. Washington, which strengthened the Sixth Amendment’s Confrontation Clause. That clause guarantees the right of criminal defendants to be confronted at trial with the witnesses against them. In Crawford, the Court barred the use in criminal trials of testimonial statements made by witnesses who did not appear at trial. In companion cases Davis v. Washington and Hammon v. Indiana, the Court said the rule does not exclude use of the tape of a 911 call that was made to seek police help in a domestic-violence emergency. Statements made in such a call are not testimonial, said Scalia for an 8-1 majority, and therefore do not violate the Confrontation Clause. The Court also found, however, that an after-the-fact affidavit given by a woman to police in a separate domestic-violence case was a testimonial statement and therefore could not be introduced as evidence at trial in lieu of the witness. Tony Mauro can be contacted at [email protected]

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