Posted on 06/19/2006 10:06:40 AM PDT by Sandy
Edited on 06/19/2006 10:09:01 AM PDT by Admin Moderator. [history]
A plurality of the Supreme Court concluded on Monday that the Clean Water Act's protection of "waters of the United States" is limited to those bodies of water that are "permanent, standing or continously flowing," and thus does not embrace channels through which water flows only some of the time. And, the Court added, "navigable waters" under the Act ordinarily is no broader than U.S. waters. The decision appeared to rule out protection against filling-in or pollution of wetlands not part of actual waterways. The actual impact of the plurality opinion by Justice Antonin Scalia appears to have been qualified by a lengthy concurrence by Justice Anthony M. Kennedy, who supplied a fifth vote for the result. Kennedy's opinion, it appears, will be the controlling one. After Scalia announced his opinion, Kennedy discussed his separate views.
The vote on the result was 5-4. Justice John Paul Stevens, who authored the dissenting opinion, also spoke from the bench about the dissenters' views.
The opinions came in the consolidated cases of Rapanos v. U.S. (04-1034) and Carabell v. Army Corps of Engineers (04-1384). The Rapanos case involved Michigan wetlands that lie near ditches or man-made rains that eventually empty into navigable waters. The Carabell case involved wetlands that are physically separated from navigable water, by means of man-made barriers such as an earthen berm, and seldom send water to a navigable stream.
Both cases were returned to lower courts for further action. Justice Stevens, in his dissent, noted that lower courts will have some difficulty deciding how to follow both the Scalia plurality opinion and Kennedy's separate concurrence. (The opinion, concurrences, and dissents are all available here.)
Huzzah! This will drive the enviroweenies nuts.
Ditches. That what this was about. Can the feds control how you did ditches...
BUMP
No.
Nor even how you dig them.
That is one very important aspect of President Bush legacy: “A Conservative Supreme Court”. Thank you Mr. President.
I can't tell you the hours and hours I spent arguing with the state conservation dept. in my state on the defition of "navigable waters." The Clean Water Act is a nightmare!!!
Given the state is overrun with geese the ruling here is asinine in the extreme.
Marsh2, do you have a citation to the case Angus MacIntosh was talking about?
They deserve it.
PIMF: definition
The enviroweenies are up the creek without a paddle.
Sanity in the courts again.
How does a 5-4 decision count only as a plurality? Shouldn't that be a majority? Or does Kennedy's separate concurence count as another, third vote? But the 5 (counting Kennedy) is still a majority (5 of 9 = majority of 9). Sounds like the reporter is splitting hairs in order to give the Left some comfort.
That's what I thought it was talking about, but I couldn't imagine anyone that worked up to sue over ditches.
It's a bigger win than the reporter lets on. A clear 5-vote majority agreed that the government overstepped its bounds in trying to regulate a so-called "wetland" in this case. However, the justices could not agree on the larger issue of what exactly are the constitutional boundaries dictating the government's power to regulate wetlands. On that point, Kennedy would not vote with either the conservative bloc or the liberal bloc.
Not perfect, but I'm happy that it's in the right direction.
where did you read or hear about that at?
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