Hapless Wetlands

Supreme Court will hear two Clean Water Act cases

The first U.S. Supreme Court session under Chief Justice John Roberts will feature two cases pitting government regulatory power against private property rights -- precisely the area where greens most fear Roberts' jurisprudence. Both cases originated in Michigan, and ask whether the federal government has jurisdiction under the Clean Water Act to regulate development on wetlands that, while part of a tributary system or drainage area, do not directly abut or drain into the "navigable waters" cited in the CWA (sounds thrilling, we know). If it does give the feds this authority, say the landowners, then the act is, in that sense, unconstitutional -- high stakes for one of the nation's cornerstone environmental laws. The commerce-clause-centered case is reminiscent of the case wherein Roberts famously suggested that a "hapless toad" that didn't cross state boundaries shouldn't be protected by the Endangered Species Act. No word yet on when the SCOTUS will hear arguments in the Michigan cases.