The US Supreme Court is currently dealing with the Clean Water Act, in two cases, both rooted in Michigan. They heard arguments last week in one of those cases, wherein a developer refused to apply for a permit to build in a wetlands area. His claim is that the federal government should not be allowed to regulate this, and that he has a right to build there unimpeded. Actually, it's one of those funny sorts of arguments, where he claims that congress never meant to restrict what he's doing, when they passed the Clean Water Act, but if they did, they violated states' rights in doing so.
An interesting aspect of this is that while the developer is claiming "states' rights" on this, the states themselves are not, but are supporting the federal government's view here. The groundwater is shared, and pollution or other damage that starts in Michigan doesn't stay only in Michigan.
To the claim that congress only regulated the larger bodies of water, and not the feeders and wetlands that ultimately flow into them, Justice Souter had this to say:
Following this logic, Justice Souter said, "All you've got to do is dump the pollutant far enough up the water system to get away scot-free."The conservative justices pushed the other way, though, as with this comment from Justice Scalia:
"I suggest it's very absurd to call that 'waters of the United States.' It's a drainage ditch."
Readers here will not be surprised that I stand on the side of Justice Souter on this. These cases will show us where the Roberts court will take our environment, and the wrong decisions here might show that Bush has done more harm in that regard by his Supreme Court appointments than he did by such things as pulling us out of the Kyoto Accord or pushing the misleadingly named Clear Skies Initiative.
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