June 30, 2006

A split Supreme Court ruled that the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers may have misinterpreted the Clean Water Act when they prevented two Michigan landowners from developing on wetlands.

In a 5-4 ruling in the joint cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, the justices said the lower courts must reconsider the law’s definition of navigable waters and whether Congress has authority over wetlands that are adjacent to or separated by man-made berms from their tributaries.

The winning side in the split decision (the first major environmental ruling for Chief Justice John Roberts and Justice Samuel Alito) had votes from only four justices. Justice Anthony M. Kennedy wrote a separate concurring opinion criticizing the lower courts for failing to clearly interpret the intent of the Clean Water Act.

In both cases, the Michigan landowners argued that Congress never intended the government to have authority over wetlands that are adjacent to navigable waters. The Clean Water Act uses “navigable waters” to accommodate the Interstate Commerce Clause and identify wetlands under the purview of the Army Corps and EPA.

In seeking to define “waters of the United States,” Justice Antonin Scalia wrote in the plurality opinion that the phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Army Corps’ expansive interpretation of the “the waters of the United States” is thus not “based on a permissible construction of the statute.”

In commenting on the split decision, Roberts wrote, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis.

Justices John Paul Stevens and Stephen Breyer each wrote dissents, saying that the decision by federal regulators to treat the wetlands as “waters of the United States” was a reasonable interpretation of the statute. “The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow,” wrote Breyer.

The Supreme Court’s unexpected decision to hear a global warming lawsuit promises to shake up the climate debate on Capitol Hill, in the court of public opinion and in other venues. The case marks the Supreme Court’s first foray into the topic of climate change.

The justices will take up a case next fall that revolves around the question of whether the U.S. Environmental Protection Agency (EPA) violated the Clean Air Act in 2003 when it opted not to regulate heat-trapping greenhouse gases from new cars and trucks.

Massachusetts Attorney General Tom Reilly (D) and a coalition of a dozen states, New York City, Baltimore and environmental groups filed the petition with the Supreme Court. They intend to overturn a pair of sharply divided rulings in the U.S. Circuit Court of Appeals, which held last summer that the Clean Air Act does not require EPA to regulate greenhouse gases.

The Environmental Protection Agency decided that carbon dioxide is not considered a pollutant under the Clean Air Act, which regulates other industrial emissions, such as ozone, sulfur dioxide or lead. EPA made that decision in response to a long-standing petition from several advocacy groups, including the International Center for Technology Assessment and Greenpeace.

A victory for the states would require EPA to review the Clean Air Act as it relates to global warming. Whatever regulation EPA adopts, opponents can be expected to turn back to the courts for help.

One of the Senate’s staunchest critics of global warming science, Environment and Public Works Committee Chairman James Inhofe (R-OK), said he hopes the Supreme Court “will bring finality to this issue by rejecting this meritless lawsuit.”

Inhofe says Congress over the last 30 years has “legislated extensively” on global climate change. “It has always been clear, however, that the Clean Air Act was intended to regulate pollution, not emissions of carbon dioxide,” he said.

The House voted to approve oil and gas exploration in coastal waters that have been protected from drilling for 25 years.

The vote was largely along party lines, 232 to 187, for a measure that would sharply expand efforts to make use of energy supplies beyond the Gulf of Mexico, the only area unaffected by Executive Branch and Congressional bans on drilling.

“This is really the first major step in producing domestic energy that we have taken in almost 30 years,” said Representative Richard Pombo (R-CA), Chairman of the House Resources Committee and the chief sponsor of the bill.

Whether the drilling bans are ultimately eliminated depends on the Senate, where the Chairman of the Energy Committee, Senator Pete Domenici (R-NM), has been trying to build support for a measure that would expand oil and gas exploration in the Gulf in an area west of Tampa, FL, known as Lease Sale 181.

Domenici still lacks enough support to win Senate passage of his bill, but he said he was optimistic “that Congress can do something this year to increase environmentally sound energy production” in the Outer Continental Shelf.

Under the House bill, the federal moratorium would remain in effect up to 50 miles offshore unless a state petitioned the Interior Department to allow drilling. Waters 50 to 100 miles offshore would be open for drilling unless the state petitioned the department to retain the moratorium. Companies would be free to drill in waters 100 to 200 miles offshore.

After heavy criticism from Congress, former employees and the public over the past year, the Department of Interior officially endorsed traditional language emphasizing conservation at U.S. national parks, backing away from proposed changes to National Park Service rules favoring recreation and public use over conservation.

Interior Secretary Dirk Kempthorne released the latest version of the Park Service management policies, which act as a handbook for park superintendents and other officials. The latest draft reinstates language endorsing a traditional use of the parks that was removed in two 2005 drafts.

“The ‘fundamental purpose’ of the national park system … begins with a mandate to conserve park resources and values,” the draft states. The draft also restores language saying that conservation should come first for agency employees.

“Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant,” the new draft says.

In October 2005, the Park Service suggested replacing that key section with this statement: “The service must balance the sometimes competing obligations of conservation and enjoyment in managing the parks.”

The Park Service began reviewing its management policies, last modified in January 2001, after several Members of Congress and representatives of the recreation industry claimed the old version shifted the management focus too far in favor of conservation at the expense of public access and recreation.

The debate over conservation versus recreation and public enjoyment has been at the center of several high-profile conflicts in recent years, such as battle over snowmobiles in Yellowstone National Park, transportation conflicts in Yosemite National Park and motorized off-road vehicle use and Jet Skis in various park units.

The House passed an appropriations bill that boosts funding for the National Science Foundation (NSF) and fully funds President Bush’s American Competitiveness Initiative (ACI).

The Science, State, Justice and Commerce appropriations bill (H.R. 5672), which funds the majority of the nation’s science agencies, including NSF, the National Aeronautics and Space Administration, and the National Oceanic and Atmospheric Administration, passed the House by a vote of 393 to 23.

The legislation funds NSF at the President’s full requested level of $6.02 billion. Under the ACI, which Mr. Bush unveiled in his State of the Union address in January, NSF is slated to have its budget doubled over the next ten years.