Supreme Court limits role of Congress in wildlife issue

States' rights majority said federal government had gone past bounds

January 10, 2001|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - The Supreme Court's states' rights majority, after tilting toward national interests in the presidential election dispute, returned to its usual stance yesterday at its first opportunity.

By the same 5-4 vote that has controlled most recent rulings on national vs. state power, the court curbed the federal government's power to protect wildlife and clean water in ponds and mudflats that are not near rivers, creeks or lakes.

The decision came four weeks after the court, in a rare interruption in a string of rulings favoring states' rights, overrode the Florida Supreme Court's view of state election law and bolstered national interests in clearing the way for George W. Bush to win the presidency.

Mixed reaction

Yesterday was the court's first decision day since then.

The most significant ruling of the day restricted the federal government's authority to protect the great blue heron, the Canada goose, the wood duck and other migratory birds that frequent pools that have formed in a 533-acre abandoned gravel and sand pit northwest of Chicago.

Carol M. Browner, administrator of the Environmental Protection Agency, said the ruling "weakens America's ability to protect its wetlands, which are among this country's most valuable natural resources."

"This ruling will make it even more difficult to effectively protect against the loss of wetlands," she said.

The Cato Institute, a conservative research and advocacy group, praised the decision as "one more in the string of cases the Rehnquist Court has issued in recent years that reassert the court's authority to police the powers of the political branches. The court once again put a brake on expansive government."

But conservation groups assailed the decision.

License refusals

Dirk Manskopf, a member of the Sierra Club's national wetlands committee, called the decision "a severe blow to federal protection of so-called isolated wetlands, and a major step back in protecting wildlife habitats."

In the Illinois case, the Army Corps of Engineers refused to issue a permit to 23 local governments to fill in the ponds in the former gravel and sand pit to make a landfill for waste and trash.

The Corps said the dumpsite would harm the habitats of 121 species of birds that visit the ponds while migrating across state lines.

Striking down the Corps' "migratory bird rule," the majority, in an opinion by Chief Justice William H. Rehnquist, said the government has no authority under the Clean Water Act to monitor the waterborne environment in isolated ponds, pools, mudflats and "prairie potholes."

If Congress had granted the government that authority, the court said, it would probably have violated the Constitution, because such expansion of federal authority would have intruded on "the states' traditional and primary power over land and water uses."

The court noted that in two recent rulings - striking down both a federal ban on guns in or near schools and a federal law permitting victims of rape and sexual assault to sue their attackers - it had made clear that the legislative power of Congress "is not unlimited."

The Clean Water Act, the majority said, was written "to avoid the significant constitutional and federalism questions" that would be raised if the Corps had been given authority to regulate waste discharges into "isolated waters."

Justice John Paul Stevens, writing for the four dissenters, accused the majority of a "miserly" ruling that "takes an unfortunate step that needlessly weakens our principal safeguard against toxic water."

The dissenters asserted that Congress had written broad language into the Clean Water Act to attack water pollution, to show a "powerful interest" in wetlands and isolated inland lakes.

Dissenting opinion

Congress, Stevens said, has regarded the national interest in the aquatic environment as far broader than simply those streams that can be navigated by boats or waterways flowing into those streams.

It is "the majority's reading" of the act, not the Corps of Engineers', "that does violence to the scheme Congress chose to put into place," the dissenters said.

The Supreme Court majority in the case - the same five that have prevailed in states' rights rulings for the past nine years - included Rehnquist and Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

The usual dissenters to states' rights rulings were together again: Stevens and Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

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