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Washington-While neither business nor environmentalists won all that they sought in the first major environmental test of the Roberts Court, the U.S. Supreme Court’s two newest members last week showed themselves to be neither “small sea” nor minimalist jurists in their approach to wetland protection, said some scholars and others. In Rapanos v. U.S., No. 04-1034, and its companion case, Carabell v. U.S. Army Corps of Engineers, No. 04-1384, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. signed on to the plurality opinion by Justice Antonin Scalia-an opinion that, had it carried the day, would have narrowed significantly the application of the Clean Water Act (CWA) to private lands. Indeed, in the view of at least one environmental law scholar, that opinion, also adopted by Justice Clarence Thomas, would have wrought a “revolution” in federal regulation under the act. “Everyone will be looking at this case very closely for all future environmental litigation, especially where there is some states’ rights wrinkle, which may possibly complicate the picture,” said William Buzbee of Emory University School of Law, who co-authored an amicus for a bipartisan group of former administrators of the Environmental Protection Agency. “We’ll just have to wait and see.” Rapanos and Carabell asked the justices whether wetlands adjacent to tributaries of traditionally navigable waters are “waters of the United States” subject to Corps jurisdiction, and whether a human-made berm separating a wetland from an adjacent tributary makes a difference. The court’s three answers The court had three answers. The Scalia plurality held that only wetlands actually “adjacent” (“possessing a continuous surface water connection”) to actual “waters of the United States” (“continuously present, fixed bodies of water” or streams with “a relatively permanent flow”) could be regulated under the act. Justice Anthony M. Kennedy, writing separately, held the Corps could regulate a wetland if it possessed a “significant nexus” to waters that are navigable in fact or could be made so, but the nexus must be assessed in terms of the act’s goals and purposes. The four dissenters, led by Justice John Paul Stevens, would have deferred to the “reasonable” interpretation of the act by the Corps, here to regulate the wetlands in question. Kennedy joined the plurality to provide the fifth vote to vacate and remand the lower court judgments-an initial victory for John Rapanos and June Carabell, who wanted to fill their wetlands for commercial developments. But he did not join the plurality opinion. His separate concurrence created the 4-1-4 split on the court and the approach that ultimately will control in the lower courts. Under his approach, agreed Kennedy and the dissenters, the Corps still will likely prevail. The Scalia plurality-whose substance and tone are rejected completely by Kennedy-is “remarkable” because it would reverse 30 years of consistent Republican and Democratic regulatory treatment, would strike down most Army Corps regulations and would question the limit of federal power under the commerce clause, said Emory’s Buzbee. Alito did not write separately in Rapanos, but Roberts did, saying the result may have been different had the Corps and the Environmental Protection Agency not failed to complete rulemaking begun three years ago to clarify what waters are subject to CWA jurisdiction. But Kennedy disagreed: “New rulemaking could have averted the disagreement here only if the Corps had anticipated the unprecedented reading of the act that the plurality advances.” Environmentalists have become accustomed to “extreme positions” being taken by justices Scalia and Thomas in property rights and other environment-related areas, said John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute at Georgetown University Law Center. “To see what looks like a monolithic conservative block emerge here gives one pause,” he added. “But if a majority is going to emerge on these issues, it probably will be led by Kennedy and will more likely reflect the views of Stevens than Scalia. After 24 hours of worrying and analysis, the environmental community is breathing a sigh of relief.”

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