Tuesday, June 20, 2006

Clean Water Act survives despite votes of Scalia, Alito, Roberts and Thomas

When Justices Alito and Roberts were put up on the Court, we here at TfK put a lot of effort into examining their background on clean air, clean water and endangered species. Both showed clear signs of being ready and willing to gut environmental protections, and today my fears were justified.

In Rapanos v. U.S., the two new extremists joined the two old extremists in arguing for a massive restriction on the Clean Water Act. Pollutants discharged into streams that occasionally dry up, or into wetlands that don't have obvious running water, would have been unregulated.

Justice Kennedy joined those four in overturning decisions by a lower court, but largely joined the other four justices in holding that wetlands, seasonal streams and other hydrological features which are not necessarily what one thinks of as a waterway might still be waterways for regulatory purposes. This means that no majority opinion exists, and Kennedy's narrow opinion is the ruling that will be binding.

SCOTUSblog explains the decision, and has additional commentary by several lawyers.

I'l read more and have more to say later.