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JANUARY 10, 2000

As two Clinton officials praised the administration's record on preserving wetlands, the Supreme Court on Tuesday ruled against the government's attempt to protect one in Illinois.

In a 5-4 ruling split along conservative lines, the Court limited a Clean Water Act regulatory provision protecting migratory birds. The Army Corps of Engineers moved to stop a Chicago solid waste agency from constructing a landfill on an abandoned gravel pit mine where ducks, herons, and other birds gather in shallow ponds.

But in an opinion authored by Chief Justice William H. Rehnquist and joined by Justices Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy, the Court said the ponds don't satisfy a key definition of the water law. Since the ponds were not connected closely with "navigable waters," the Court held the Corps had no jurisdiction over the site.

The Court's ruling highlights key complaints Republican lawmakers and states' rights advocates have against many of the Clinton administration's regulatory decisions. Outgoing Secretary of Interior Bruce Babbitt last week noted the administration has achieved many of its goals through new rules, rather than legislation.

Yet while the government argues it has broad powers under the Constitution to regulate environmental policy at the state and municipal level, critics -- including Secretary of Interior nominee Gale Norton -- say such regulations take control away from local decision-makers. The opinion rendered yesterday bolstered such criticism, reversing a Seventh Circuit Court of Appeals decision.

"Permitting [the government] to claim federal jurisdiction over ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant impingement of the States' traditional and primary power over land and water use," said the Court.

At the same time, the Court on Tuesday stopped short of declaring the migratory provision un-Constitutional. Yesterday's ruling doesn't affect the government's protection of wetlands adjacent to navigable waters -- a power the Court affirmed in 1985.

The minority opinion, authored by Justice John Paul Stevens and joined by Justices David H. Souter, Stephen J. Breyer, and Ruth Bader Ginsburg took a dim view of their counterparts and the ruling's effect on environmental policy.

"Today the court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water," wrote Stevens. Environmental Protection Agency administrator Carol Browner agreed.

"I am very disappointed today by the Supreme Court's split decision. It weakens America's ability to protect its wetlands, which are among this country's most valuable natural resources," said Browner. "That is why the Clinton-Gore Administration has worked hard for eight years to ensure the protection of wetlands under our nation's environmental laws."

Meanwhile, Secretary of Agriculture Dan Glickman and Babbitt on Tuesday were highlighting some of those efforts. The departments released two reports which record the reduction in the loss of wetlands over the past 10 years.

"The Interior report released today shows that the rate of wetlands loss has dropped dramatically in a decade -- by 80 percent," said Babbitt. "This is very good news."

The Interior report focused on public and private lands while the Agriculture report was based on private lands.

Get the Case:
SOLID WASTE AGENCY OF NORTHERN COOK COUNTY v. U.S. ARMY CORPS OF ENG'RS, No 99–1178 (Sup Ct 2001)

Get the Wetlands Reports:
Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1986 to 1997 (US Fish and Wildlife January 2001)
1997 National Resources Inventory (USDA January 2001)

Relevant Links:
The Supreme Court - www.supremecourtus.gov