Release date: Feb. 10, 2006
Contact: Elaine Justice at 404-727-0643 or elaine.justice@emory.edu

Emory's Buzbee Submits Supreme Court Brief in Landmark Clean Water Act, Federal Power Cases

Emory University's William Buzbee has co-authored an amicus brief in 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 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," says Buzbee. In these consolidated cases, Carabell v. United States and Rapanos v. United States, the real estate developer challengers maintain that the Clean Water Act protects only "traditional navigable" waters (those suitable for use by commercial vessels) and those wetlands and streams directly adjacent to those waterways. This position would reverse the way the act has been applied for the last three decades, he says.

If that happens, says Buzbee, at least 55 to 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," he says.

According to the brief, "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. Property rights groups, developers, and a few states are taking a strong contrary 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 Law School's Turner Environmental Law Clinic also provided critical research for the brief. 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 to protect the environment.

The brief was submitted on behalf of a bipartisan group of former Environmental Protection Agency administrators: Carol Browner, William K. Reilly, Douglas Costle and Russell Train. For a comprehensive listing of briefs in the cases, click here.

Buzbee can be reached at 404-727-6507 or wbuzbee@law.emory.edu.

Emory University is known for its demanding academics, outstanding undergraduate college of arts and sciences, highly ranked professional schools and state-of-the-art research facilities. For nearly two decades Emory has been named one of the country's top 25 national universities by U.S. News & World Report. In addition to its nine schools, the university encompasses The Carter Center, Yerkes National Primate Research Center and Emory Healthcare, the state's largest and most comprehensive health care system.

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