Release date: June 20, 2006
Contact: Elaine Justice at 404-727-0643 or elaine.justice@emory.edu

Wetlands Protections Mostly Intact, Says Buzbee

Emory University's William Buzbee says that the U.S. Supreme Court's fragmented ruling in Rapanos, one of the biggest environmental law cases to come before the court since passage of the Clean Water Act 33 years ago, will result in "added administrative burden and probably more skirmishing" between developers and government.

"In the end, however, it appears that the test lower courts and agencies will now apply to determine what 'waters of the United States' are protected by federal law will likely be substantially similar to longstanding protections," says Buzbee.

In the cases, Carabell v. United States and Rapanos v. United States, the real estate developer challengers maintained that the Clean Water Act protects only "traditional navigable" waters (those suitable for commercial vessels) and those wetlands and streams directly adjacent to those waterways.

While five justices on the court concluded that the Army Corps of Engineers, which oversees enforcement of the act, would have to establish the basis for its jurisdiction on a remand to a lower court, the justices decided the cases in a 4-1-4 split. Justice Anthony Kennedy's opinion will play the key role now, says Buzbee.

The impact of the decisions is that the courts and the government will likely take "a closer case-by-case look at the permit application to see if federal jurisdiction exists" under a new test articulated by Justice Kennedy. Despite a "strongly worded" plurality opinion by Justice Scalia—joined by Justice Thomas and new Justices Roberts and Alito—that would have thrown out more than 30 years of established law protecting such wetlands, that opinion "did not get the necessary five votes to constitute Supreme Court law," says Buzbee.

Even with "this fragmented set of opinions," says Buzbee, the decisions will result in "much more of a win for those seeking protection of America's waters than industry and developers who saw in Rapanos a possibility of substantial weakening of the Clean Water Act."

Buzbee, director of the Emory Environmental and Natural Resources Law Program, joined colleagues at Stanford University in co-authoring an amicus brief in the cases that was submitted by an unprecedented bipartisan group of four former U.S. Environmental Protection Agency Administrators.

More on Buzbee's analysis of the cases is at www.scotusblog.com.

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