SUPREME COURT CLEANS WATER ACT'S CLOCK


Clean Water Act Reach Limited: U.S. Supreme Court Overview

June 19 (Bloomberg) -- The U.S. Supreme Court limited the reach of the Clean Water Act, saying it applies only to wetlands with a close connection to a river, lake or some other major waterway.

The justices, voting 5-4, ordered a new round of hearings for two sets of Michigan landowners whose efforts to build on their property have been stymied by the U.S. Army Corps of Engineers. The majority was divided in its reasoning, with Justice Anthony Kennedy refusing to join four other justices in putting even more restraints on the federal regulators.

Kennedy's separate opinion now becomes the controlling law. He established a new test, saying the Corps can regulate only wetlands that have a ``significant nexus'' to a major waterway. He also said that in both cases before the justices, the Corps had at least some evidence of that type of connection.

Kennedy's reasoning drew criticism from both ends of the court. Justice Antonin Scalia called Kennedy's test ``opaque'' and said it ``tips a wink at the agency, inviting it to try its same expansive reading again.''

Chief Justice John G. Roberts Jr. and Justices Samuel Alito and Clarence Thomas joined Scalia's opinion. The case marked the first environmental test for the court's newest justices, Roberts and Alito.

Stevens Dissent

Justice John Paul Stevens, writing for the four dissenters, said Kennedy's test will create new uncertainty and additional work for regulators and landowners. He also said the new test ``will probably not do much to diminish the number of wetlands covered by the act in the long run.''

Commerce Clause

In focusing on the meaning of the Clean Water Act, the court didn't decide a more far-reaching question presented by the case -- whether Congress has power to regulate those wetlands under the Constitution's Commerce Clause.

http://www.npr.org/documents/2006/jun/scotus/060619rapanos.pdf

JUSTICE SCALIA'S DECISION:

"We first addressed the proper interpretation of 33 U. S. C. §1362(7)’s phrase “the waters of the United States” in United States v. Riverside Bayview Homes, Inc.,
474 U. S. 121 (1985). That case concerned a wetland that was adjacent to a body of navigable water,” because “the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondents property to . . . a navigable waterway.” Id., at 131;see also 33 CFR §328.3(b) (2004). Noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one,” and that “the Corps must necessarily choose some point at which water ends and land begins,” 474 U. S., at 132, we upheld the Corps’ interpretation of “the waters of the United States” to include wetlands that “actually abut[ted] on” traditional navigable waters. Id., at 135."

"In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute “waters of the United States” within the meaning of the Act."

"Wetlands are “waters of the United States” if they bear the “significant nexus” of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be “waters of the United States”? JUSTICE KENNEDY’s test is that they, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable,’ ” post, at 23 (emphasis added). But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the United States?"

"JUSTICE KENNEDY reach the conclusion he has arrived at. Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the “purpose” of the statute. Its purpose is to clean
up the waters of the United States, and therefore anything that might “significantly affect” the purity of those waters bears a “significant nexus” to those waters, and thus (he never says this, but the text of the statute demands thathe mean it) is those waters. This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose. To begin with, as we have discussed earlier, clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U. S. C. §1251(b). JUSTICE KENNEDY’s test takes no account of this purpose. More fundamentally, however, the test simply rewrites the statute, using for that purpose the gimmick of “significant nexus.” It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that “significantly affect the chemical, physical, and biological integrity of ” waters of the United States. It did not do that, but instead explicitly limited jurisdiction to “waters of the United States.”"

"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered “waters of the United States,” and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are “waters” in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are “adjacent” to these “waters” in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."

CHIEF JUSTICE ROBERTS:

"Five years ago, this Court rejected the position of the Army Corps of Engineers on the scope of its authority to regulate wetlands under the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC). The Corps had taken the view that its authority was essentially limitless; this Court explained that such a boundless view was inconsistent with the limiting terms Congress had used in the Act. Id., at 167–174."

"Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority."

"It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case
basis."


JUSTICE STEVENS DISSENTS:

"In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things,
providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow."

"The facts related to the 230-acre Salzburg site are illustrative. In 1988, John Rapanos asked the Michigan Department of Natural Resources (MDNR) to inspect the site in order to discuss with him the feasibility of building a shopping center there.” App. to Pet. for Cert. in No. 04– 1034, p. B15. An MDNR inspector informed Rapanos that the land probably included wetlands that were “waters of the United States” and sent him an application for a permit under §404 of the Act.1 Rapanos then hired a wetland consultant, Dr. Frederick Goff. After Dr. Goff concluded
that the land did in fact contain many acres of wetlands, Rapanos threatened to ‘destroy’ Dr. Goff if he did not destroy the wetland report, and refused to pay Dr. Goff unless and until he complied.” Ibid. In the meantime, without applying for a permit, Rapanos hired construction companies to do $350,000 worth of work clearing the land, filling in low spots, and draining subsurface water. After
Rapanos prevented MDNR inspectors from visiting the site, ignored an MDNR cease-and-desist letter, and refused to obey an administrative compliance order issued by the EPA, the matter was referred to the Department of Justice. In the civil case now before us, the District Court found that Rapanos unlawfully filled 22 acres of wetlands."

THE CLEAN WATER ACT (AS REVISED THROUGH 2002)

http://www.epa.gov/region5/water/pdf/ecwa.pdf

"FEDERAL WATER POLLUTION CONTROL ACT
(33 U.S.C. 1251 et seq.)
AN ACT To provide for water pollution control activities in the Public Health Service
of the Federal Security Agency and in the Federal Works Agency, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I—RESEARCH AND RELATED PROGRAMS
DECLARATION OF GOALS AND POLICY"

"...(7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution."

From EPA"Nonpoint source (NPS) pollution, unlike pollution from industrial and sewage treatment plants, comes from many diffuse sources. NPS pollution is caused by rainfall or snowmelt moving over and through the ground. As the runoff moves, it picks up and carries away natural and human-made pollutants, finally depositing them into lakes, rivers, wetlands, coastal waters, and even our underground sources of drinking water. "

"(b) It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act."

Clearly, the Justices Scalia and Roberts are ignoring the intent of Congress. The Clean Water Act was promulgated to clean the "waters of the United States". Controlling "nonpoint sources" of pollution may indeed cover every piece of property within the United States - to their chagrin. Furthermore, as with every environmental statute, the Congress yields responsibility to the States under conditions that they "consult with the Administrator" (aka EPA) - the caveat being if the States fail to enforce the statute, the Administrator will assume the role.

Nexus-smexus.

Supreme Court Limits Whistleblower Retaliation Lawsuits

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Constitution: First Amendment)

May 30, 2006

The justices ruled 5-4 Tuesday that government employees who go public with allegations of official misconduct do not have carte blanche free speech rights to disclose the information. The newest justice, Samuel Alito, cast the tie-breaking vote.


SUPREME COURT OF THE UNITED STATES Syllabus GARCETTI ET AL. v. CEBALLOS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—
Decided May 30, 2006
Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the af-fidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrep-resentations, Ceballos relayed his findings to his supervisors, petition-ers here, and followed up with a disposition memorandum recommend-ing dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the war-rant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then re-taliated against him for his memo in violation of the First and Four-teenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The Dis-trict Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote itpursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461 U. S. 138. Held: When public employees make statements pursuant to their offi-cial duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communica-tions from employer discipline. Pp. 5–14.


GIL GARCETTI, ET AL., PETITIONERS v. RICHARD
CEBALLOS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 30, 2006]
JUSTICE STEVENS, dissenting. The proper answer to the question “whether the First Amendment protects a government employee from disci-pline based on speech made pursuant to the employee’s official duties,” ante, at 1, is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided,” ante, at 11. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?*

"...for it is senseless to let constitutional protection for ex-actly the same words hinge on whether they fall within ajob description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive tovoice their concerns publicly before talking frankly to their superiors."

from: http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf#search='Garcetti%20v.%20Ceballos,%2004473.'

Somewhere along the way, Supreme Court Activism has taken the 1st Amendment and opined its protections into what we see today. For an in-depth review of how the 1st Amendment has evolved:

http://caselaw.lp.findlaw.com/data/constitution/amendment01/

Some additional food for thought:

http://www.statesman.com/news/content/news/stories/nation/12/11whistlebox.html

SUPREME COURT ACTIVISM


The Supreme Court is the last bastion of liberal power. For over 40 years, black-robed tyrants have pushed a radical agenda in America with devastating results. Consider the damage inflicted since 1962:

• They banished prayer and the Bible from our public schools.
• They raised a “right of privacy” banner, under which 43 million babies have been aborted.
• They overthrew sodomy laws, opening the door to same-sex marriage.
• They called for the removal of the Ten Commandments from courthouses across the nation.

(excerpted from http://www.cbn.com/special/supremecourt/prayerpledge.asp)

But it doesn't stop there:

Affirmative action: In 2003, the justices upheld affirmative action in college admissions by a single vote. Favoring admission policies that give a boost to racial minorities under certain conditions were Stevens, O'Connor, Souter, Ginsburg and Breyer. The swing vote was O'Connor, who in other cases had been the key fifth vote to strike down racial preferences in federal contracting and to impede the creation of "majority minority" congressional districts. Such districts have been drawn specifically to consolidate black or Hispanic voters to try to boost their political power.

Separation of church and state: By a 5-4 vote in 2002, the justices upheld publicly financed "vouchers" for parents who want to send their children to religious schools. In the majority were Rehnquist, O'Connor, Scalia, Kennedy and Thomas. Two years earlier, the court's liberals led the way as the justices voted 6-3 to strike down pre-kickoff prayers at high school football games. Rehnquist, Scalia and Thomas dissented.

Federal vs. state power: The court's conservatives (Rehnquist, O'Connor, Scalia, Kennedy and Thomas) repeatedly have protected states from federal intervention in several areas. The court, for example, has prevented state workers who face discrimination because of age or disability from suing their employers for money damages under federal laws. Last term, however, O'Connor switched positions in a states' rights case to allow people with disabilities to sue states for access to courthouses under the Americans with Disabilities Act.

Access to Medical Care

In Rush Prudential HMO, Inc. v. Moran, the Court upheld, 5-4, a state law that provided for independent review of the medical necessity of a procedure for which an HMO had denied coverage.

Voting Rights
In Bush v. Gore, which effectively decided the 2000 presidential election, the Court decided, 5-4, to stop the recount of ballots in Florida. The Court held that Florida’s recount plans violated the Equal Protection Clause because they failed to identify and require uniform, state-wide standards for accepting and rejecting contested ballots.

States’ Rights

In Kimel v. Florida Board of Regents, the Court ruled that Congress cannot authorize older state workers to recover money damages when their state employers discriminate against them in violation of the Age Discrimination in Employment Act (ADEA).

In United States v. Lopez, the Court struck down the federal Gun Free School Zones Act, which made it illegal for anyone to carry a firearm within 1000 feet of a school. It was the first time in almost 70 years that the Court invalidated a federal law on the grounds that it exceeded Congress’ authority to regulate interstate commerce.

Reproductive Freedom

In Stenberg v. Carhart, the Court, 5-4, struck down broadly written bans on late-term abortion procedures, holding that the laws unduly burdened the constitutional right to reproductive choice by failing to allow doctors to use the procedures to protect the health of the woman.

Church-State Separation

In Lee v. Weisman, the Supreme Court decided, 5-4, that it was unconstitutional for public school officials to sponsor religious prayers at graduation ceremonies.

Environmental Protection

In In Solid Waste Agency of N. Cook Cty. v. United States Army Corps of Engineers, the Supreme Court decided, 5-4, that the Clean Water Act did not give the federal government the authority to stop pollution in small lakes not connected to interstate waterways.

In Alaska Department of Environmental Conservation v. EPA, the Court held, 5-4, that the EPA could use its enforcement power under the Clean Air Act to block construction of a major pollutant-emitting plant in Alaska. The ruling allowed the federal government to override a state-issued permit allowing the plant’s construction.

Criminal Justice
In recent years, four justices, Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas, almost always have voted to uphold death sentences. Four other justices, Justices Stevens, Souter, Ginsburg and Breyer, have voted to overturn death sentences on occasion. Justice O'Connor is often a swing vote and has expressed growing concern over the administration of capital punishment. In 2001, she stated that “serious questions are being raised” about the death penalty and that “the system may well be allowing some innocent defendants to be executed.”

In Missouri v. Seibert, the Court held, 5-4, invalidated, as a circumvention of the Miranda rule’s requirements, the practice of obtaining a confession without giving Miranda warnings in order to re-elicit the same information, soon after, following such warnings.

Campaign Finance Reform

In McConnell v. Federal Election Commission, the Court, 5-4, held that legislation prohibiting unlimited “soft money” donations to political parties does not offend the First Amendment’s guarantee of freedom of speech.

Presidential Power

In Rasul v. Bush, the Court decided, 5-4, that detainees held at Guantanamo Bay on orders of the president have the right to pursue habeas corpus claims challenging the government’s right to hold them.

In Hamdi v. Rumsfeld, five justices held that President Bush has the power to order American citizens captured on a foreign battlefield to be held on U.S. soil without express authorization from Congress; eight justices, however, held that such American citizen detainees have the right to pursue habeas corpus claims challenging the government’s right to hold them.

(from http://www.supremecourtwatch.org/)

Supreme Court Upholds Eminent Domain Abuse

WASHINGTON — Cities may bulldoze people's homes to make way for shopping malls or other private development, a divided Supreme Court ruled Thursday (06/23/2005), giving local governments broad power to seize private property to generate tax revenue.

In a scathing dissent, Justice Sandra Day O'Connor said the decision bowed to the rich and powerful at the expense of middle-class Americans... In dissent, O'Connor criticized the majority for abandoning the conservative principle of individual property rights and handing "disproportionate influence and power" to the well-heeled.

from: http://www.foxnews.com/story/0,2933,160479,00.html

Here's more food for thought:

A striking current example of how activist judges engage in the "evolution" of the so-called "living" Constitution was provided by the U.S. Supreme Court in June this year. In Atkins v Virginia, Justice John Paul Stevens rewrote the Eighth Amendment to outlaw capital punishment for those with low I.Q. scores. There isn't any basis in the Constitution for his decision. Justice Stevens based it on what he called "a national consensus," for which he cited "polling data." Stevens was appointed by the so-called moderate Republican, President Gerald Ford.

Justice Stevens apparently thinks that our laws can be made by public opinion polls instead of by our elected representatives. Justice Scalia properly rebuked him, retorting that the Stevens decision really was based on "nothing but the personal views" of the Justices.

from: http://www.eagleforum.org/psr/2002/oct02/psroct02.shtml

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

from: http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html?ex=1278302400&en=0e5fac7774080327&ei=5090

Certainly judicial activists who craft the meaning of legislation should be reined in, but, one can only wonder, if the legislature writes laws which are stricken by activist judges who feel they violate the constitution, how can we create new laws. You be the judge.

A HOUSE NO LONGER DIVIDED

Article I, Section 6:

Senators and Representatives...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

http://www.law.cornell.edu/constitution/constitution.articlei.html

The gauntlet has been dropped. The Congress has the responsibility to pick it up. Responsibility? Lets remember the Congress represents the people. If the Congress allows the separation of powers to erode, they are failing their constituents.

The illegal search of Rep. Jefferson's office by the DOJ and FBI clearly violates the constitution. The "speech or debate" clause has been interpreted by the judiciary as follows: "precludes any showing of how [a member of Congress], acted, voted, or decided." United States v. Brewster, 408 U.S. 501, 525 (1972). In essence, every file, note or document of any kind may contain precluded information and the "form" subpeona signed and issued by a federal judge did nothing to distinguish precluded documents. Realizing the constitutional conflict, DOJ formulated a search strategy:

"First, the physical search would be conducted by FBI agents who are not involved in the investigation, and who would swear in writing not to reveal anything politically sensitive and unrelated to the investigation that they might see in Rep. Jefferson's office. These non-case agents would then hand records over to a "Filter Team," whose only role before or after their appointment would be to double-check for anything that may run afoul of the Speech or Debate clause or any other privilege. They would log the date, recipient, sender, and subject matter of anything they found that raised a red flag, turn those logs over to Jefferson's lawyers, and submit the questionable material to the judge to determine whether it was in fact privileged and therefore excluded from evidence." from http://spectator.org/dsp_article.asp?art_id=9876

What DOJ and all the naysayers fail to recognize is that the "privelege" invoked by this clause is not protected by a "filter team". DOJ could have maintained some integrity had they allowed the House Attorney or another representative (including Jefferson) be present during the search - which in their wisdom they not only opted to not notify the House but BARRED Jefferson and the House Atty from being present. The act of reviewing any written material (and more aggregiously the copying of Jefferson's entire hard drive) clearly violates the constitution.

Witnesses before the Congressional Committee investigating the search further pointed out that the "priveleged documents" were limited to just that. Any other materials seized (ie, drugs, money) would be legal.

The DOJ & FBI simply overstepped their bounds.

Another witness responded to Atty General Gonzalez and others threatening to resign before giving up the documents: "Let them".

Dont let the DOJ interpretation of precedent sway your judgement. There are suggestions that a ruling in a search of a judge's chambers and office is adequate precedent. You will note in the Constitution, no such privelege or protection exists for the Judicial or Executive offices. The Judiciary has interpreted many similar protections to their office and the Executive, however.

The Congress must act swiftly and forcefully to uphold the Constitution. The suggestion by some witnesses and Congressman to enact legislation on proper procedures for future incidents is absurd. As with many issues, there is more than enough legislation and judicial precedent. Not to mention the 219 years of respect afforded to this institution.