A Test for the New Justices

New York Times Editorial
Published: February 21, 2006

The Supreme Court hears arguments today in a pair of cases that could drastically weaken the protections of the Clean Water Act. These cases are an important test of the legal philosophy of John Roberts Jr., the new chief justice, and Samuel Alito Jr., the new associate justice. If they take a hard-line states' rights stance, it will be a sign that they agree with ultraconservatives who want to restrict Congress's power to regulate critical national matters like environmental protection, public health and workplace safety.

The two cases being heard today, both out of Michigan, are challenges by developers who want to build on environmentally fragile lands. They argue that the Clean Water Act should not interfere with their plans. The act bars the discharge of pollutants, including dredged or fill material, into "navigable waters." There has been much debate over just what the act covers. The Supreme Court has already held that it protects wetlands that are adjacent to navigable waters. Today's cases involve two new permutations. One developer's wetlands are adjacent not to navigable waters, but to their tributaries. The other's wetlands are separated from such tributaries by a berm, a small manmade barrier.

It is clear from the act, and the many interpretations it has been given over the years, that Congress intended to protect a whole national system of waterways. Wetlands, which play a critical role in flood control and in filtering out pollutants before they reach nearby waters, should be covered, even if they are adjacent to tributaries or isolated by berms.

The developers argue that applying the act against them would exceed Congress's power under the Commerce Clause. But protecting this whole national system of waterways is basic to Congress's power. Even the Bush administration, which is sympathetic to states' rights, has come in strongly on Congress's side. So have more than 30 states and a national association of state water pollution officials, which says that removing federal protections would "leave a regulatory void that the states could not easily fill."

These cases' impact on the environment could be devastating. The rivers and streams classified as navigable represent a very small percentage of all rivers and streams in the nation. If the developers prevailed, a vast majority of the nation's waterways could be opened up to pollution, endangering the health of the many millions of Americans who drink these waters or are otherwise exposed to them.

Beyond the environmental impact if the new Roberts court should use these cases to scale back Congress's powers, other important federal health, workplace safety and economic protections would also be put at risk. Chief Justice Roberts and Justice Alito talked at their confirmation hearings about judicial modesty and respect for the democratically elected branches. These cases may give the American people the first clear indication of just how judicially modest the new justices intend to be.