Emory Report
February 27, 2006
Volume 58, Number 21


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February 27 , 2006
Law professor co-authors brief in Supreme Court case

BY elaine justice

School of Law Professor Bill Buzbee has co-authored an amicus brief related to what he called the biggest environmental law cases to come before the U.S. Supreme Court since passage of the Clean Water Act 33 years ago.

Buzbee, director of the Emory Environmental and Natural Resources Law Program, and colleagues at Stanford University wrote the brief for an unprecedented, bipartisan joint submission by four former U.S. Environmental Protection Agency (EPA) administrators.

“These cases will be a critical test for protection of America’s rivers and wetlands, as well as the reach of the federal government’s power,” Buzbee said.

In these consolidated cases, Carabell v. United States and Rapanos v. United States, the plaintiffs, a group of real estate developers, argued that the Clean Water Act protects only “traditional navigable” waters (those suitable for use by commercial vessels) and any wetlands or streams directly adjacent to those waterways.

That position, if supported by the court, would reverse the way the act has been applied for the last three decades, Buzbee said. If that happens, he said, at least 55–60 percent of linear miles of U.S. rivers and waters (including fishing, recreation and drinking water areas) would be lost to federal protection from pollution discharges.

“The stakes in these cases are huge,” Buzbee said.

According to the brief he co-authored, “Petitioners’ arguments to exclude non-navigable waters and their adjacent wetlands from federal regulation strike at the very heart of the nation’s water pollution control programs.”

In an unusual twist, the Bush administration, environmental groups, a large number of states and Buzbee’s former EPA administrator clients are all in agreement that federal power should be upheld. Developers, property-rights groups and a few other states are taking a strong opposite view.

The second big issue in these cases—the reach of the federal government’s power over commerce—will be the first major presentation of these issues to the Supreme Court since the appointment of Chief Justice John Roberts and Justice Samuel Alito.

Buzbee authored the amicus brief with Deborah Sivas and her colleagues at the Stanford Law School Environmental Law Clinic. Emory’s Turner Environmental Law Clinic also provided critical research. The work of Buzbee, Emory and Stanford was provided on a pro bono basis. Buzbee was called to assist due to his scholarship and teaching that often analyzes federal power related to environmental protection.

The brief was submitted on behalf of a bipartisan group of former EPA administrators: Carol Browner, William Reilly, Douglas Costle and Russell Train. For a comprehensive listing of briefs in the cases, visit www.eswr.com/1105/rapanos/.