Defenders' Experts
Federal Wetlands
Rapanos v. United States and Carabell v. United States
Case Background:
In early 2006, the United States Supreme Court agreed to hear two cases addressing whether or not the Commerce Clause permits Congress to regulate intrastate wetlands and tributaries under the Clean Water Act (“CWA”). Defenders filed an amicus brief in the case on behalf of a slate of eminent ecologists that included E.O. Wilson, Jared Diamond, Paul Ehrlich, Peter Raven, Hal Mooney, Gordon Oriens, David Wilcove, and others. The brief argued the importance of headwaters, tributaries and wetlands to aquatic ecosystems and the many ways that ecosystem services affect interstate commerce. It also argued that the Clean Water Act’s comprehensive scheme for improving the nation’s waters would be seriously undermined by a ruling eliminating federal jurisdiction over these waters and wetlands.
In its June 2006 ruling, a sharply-divided Supreme Court upheld protections for most wetlands but imposed new requirements that could require the Army Corps of Engineers to demonstrate on a case-by-case basis whether the wetland at issue has a “significant nexus” to a navigable waterway.
In remanding both cases to the lower courts for new determinations, the Court split 4-1-4 with Justice Kennedy issuing a solo concurring opinion that sets out this “significant nexus” test. Four justices of the Court - Scalia, Thomas, Alito and Chief Justice Roberts - would have dramatically curtailed wetlands protections under the Clean Water Act. Four others - Stevens, Breyer, Ginsburg, and Souter - fully accepted Defenders’ argument and the argument of the government that the Congress intended for the Clean Water Act to protect wetlands, and that such protections are ecologically necessary to effectuate the Act’s goal to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Related Documents:
Status:
Concluded 06/2006
