Court limits Clean Water Act

AP 9jan01

Washington DC  – The U.S. Supreme Court says the federal government doesn't have the power to stop a group of Chicago suburbs from building a landfill over ponds used by migrating birds.

The five-to-four decision today overturns lower courts' rulings that said the rules of the 1972 Clean Water Act barred use of the land near Bartlett for the proposed landfill.

Chief Justice William Rehnquist wrote that allowing federal jurisdiction over ponds like those near Bartlett would infringe on state's traditional power to determine how land is used.

The case involves a plan by a consortium of 23 Chicago suburbs to build a solid-waste landfill on 533 acres straddling the Cook-Kane county line.

The old strip mine now includes about 200 ponds used as nesting areas by migratory birds.

Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor joined Rehnquist's opinion.

Justices David H. Souter, Stephen J. Breyer, Ruth Bader Ginsburg and John Paul Stevens dissented.

"Today the court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water," Stevens wrote for the minority.

COURT DIVIDE

The 5-4 split follows the court's familiar conservative-liberal divide. The same lineup has decided a series of cases favoring state rights over those of the federal government.

And the same lineup voted to stop ballot recounts in Florida last month, effectively handing the presidential election to George W. Bush.

High court limits Clean Water Act

The court limited its ruling to the environmental question at hand. When the court agreed to hear the case, civil liberties groups feared it would become a broad challenge to the way the federal government protects civil rights as well as the environment.

That is because the 1972 clean water law draws much of its regulatory authority from the part of the Constitution that gives Congress the power to regulate commerce between the states.

The same legal reasoning underpins a broad network of federal environmental and civil rights protections.

All use an expansive view of interstate commerce that holds, basically, that while a local decision to build a landfill or deny lodging to blacks may not have immediate effect elsewhere, there is economic peril in allowing local governments everywhere to make the same choices.

Interest groups from the U.S. Chamber of Commerce to the National Gay and Lesbian Task Force weighed in with two dozen friend-of-the-court papers.

NARROW OPINION

Rehnquist seemed to take some pains to keep the opinion narrow.

The government's arguments that the "commerce clause" gives it control over the Illinois wetlands, "raise significant constitutional questions, yet there is nothing approaching a clear statement from Congress that it intended," the Clean Water Act to be read that way,
Rehnquist wrote.

Earth mattersTalk about the planet•Environment Bulletin Board For the last five years, the 5-4 majority has ruled that the commerce clause does not apply to non-economic activity inside a state's borders.

The Illinois case concerns a group of local governments that want to build a landfill on about 500 acres near Chicago, including about 17 acres classified as wetlands.

The Clean Water Act requires a permit from the Corps of Engineers for landfills affecting "waters of the United States," including lakes, wetlands and ponds.

The local Illinois governments first requested a permit from the federal government in 1986 and have fought the case ever since.

The landfill authority claims that the federal Army Corps of Engineers lacks jurisdiction in the case, since the pools do not really connect with any interstate waterway.

The Clinton administration backed the Army Corps in the case. A federal judge ruled for the government, and the Chicago-based 7th U.S. Circuit Court of Appeals agreed.