The Supreme Court yesterday delivered a long-awaited decision in the consolidated Rapanos/Carabell cases, which raised the important issue of whether the Clean Water Act gives the federal government authority to regulate the vast majority of the country's environmentally-sensitive wetlands. Generally speaking, there were four votes to gut that authority (Scalia, Thomas, Roberts and Alito), four votes to keep it intact (Stevens, Souter, Ginsburg and Breyer), and one vote to circumscribe it modestly (Kennedy). Justice Kennedy's opinion reflecting that one vote establishes the precedent of the Court (See post by Richard Lazarus on SCOTUSblog). The specific result was, by a 5-4 margin, to send the cases back to the appeals court to decide whether, on the facts of each one and under the rule adopted by Kennedy, the Army Corps of Engineers acted within its authority to restrict development on property it had designated as wetlands.
But for Kennedy's lone concurrence, the result could have been much, much worse (See posts by William Buzbee on SCOTUSblog and Doug Kendall on ACS Blog). Ominously, the two newest justices, Roberts and Alito, advocated in favor of that result by joining in the opinion of Justice Scalia. Relying on a 1954 dictionary, that opinion would have limited the Clean Water Act's coverage to "relatively permanent, standing or flowing bodies of water" and thereby washed away a significant portion of existing federal water protection -- contrary not only to the wishes of federal regulators and Congress, but also to those of the states whose authority the opinion was purporting to defend. Justice Kennedy accused the Scalia-led plurality of advancing an interpretation of the Clean Water Act "without support in the language and purposes of the Act or in [the Court's] cases interpreting it." Justice Stevens added that the plurality was guilty of flat-out "antagonism to environmentalism."
The news and commentary on this one are just beginning to roll in, folks (see for example here, here and here.)