Supreme Court justices questioned the limits of the federal government to control pollution under the Clean Water Act in a series of cut-and-thrust exchanges on Tuesday. Justice David H. Souter asked M. Reed Hopper, the lawyer in one of the twin cases before the court, why Congress would regulate navigable rivers without extending that same authority to the waterways and wetlands that feed them.

Following this logic, Justice Souter said, "All you have got to do is dump the pollutant far enough up the water system to get away scot-free." Mr. Hopper contended that "Congress did not intend to regulate the entire tributary system" that feeds into the country s large rivers. He represents John A. Rapanos, a Michigan developer who failed to get a federal permit before filling his wetlands with sand and who is appealing a civil judgment against him. Mr. Rapanos s case involves three wetlands, one of which is 20 miles from the nearest navigable waterway but adjacent to a drainage ditch whose contents eventually flow into that river.

A case being argued simultaneously involves a Michigan wetland, owned by Keith and June Carabell, that is separated from navigable water on the surface by an earthen berm and underneath by impermeable clay soils. In questioning Mr. Hopper, Justice Ruth Bader Ginsburg asked if the wetland adjacent to the river counted as falling under the federal mandate, "Why not a stream that goes right into it? What sense does the distinction make?"

Mr. Hopper said that a strict reading of the 1972 legislation showed that Congress gave specific authority to regulate only navigable waters — and, after a 1985 Supreme Court ruling, any neighboring wetlands. When the solicitor general, Paul D. Clement, rose to make his argument about the extent of federal jurisdiction, he was met with a volley of barbed questions, most from Justice Antonin Scalia. Justice Scalia said that under the government s logic, "a storm drain, even when not filled with water, is a tributary." Minutes later, he added, "I suggest it s very absurd to call that waters of the United States. It is a drainage ditch."

Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. also pondered how to determine whether a large waterway clearly covered by the act had a "significant nexus" to a smaller tributary, which would place the smaller waterway under federal, not state, regulation. Chief Justice Roberts asked whether a wetland that contributed "one drop a year" to a tributary of a navigable waterway should be subjected to regulation. The solicitor general said it would. Justice Scalia followed up, saying, "I do not know how a storm drain is a water of the United States."

A few minutes later, Chief Justice Roberts told Mr. Clement, "You put a lot of weight on the tributary approach," and then added, "For those of us having trouble with the concept of tributary, you do not give us much to fall back on." Mr. Clement replied by citing a major section of the law, saying it was "the clearest textual indication that Congress meant to regulate something" beyond the scope of navigable waters. The arguments marked the first appearance on the bench of Justice Samuel A. Alito Jr., the junior justice, who asked a single question.
(NYT, 22/02/06)
http://www.nytimes.com/2006/02/22/politics/politicsspecial1/22enviro.html?ex=1298264400&en=ce9e589e6133cbb4&ei=5088&partner=rssnyt&emc=rss