Decisions: Clean Water Act reach limited
UPDATE 11:05 a.m.
A plurality of the Supreme Court concluded on Monday that the Clean Water Act’s protection of “waters of the United States” is limited to those bodies of water that are “permanent, standing or continously flowing,” and thus does not embrace channels through which water flows only some of the time. And, the Court added, “navigable waters” under the Act ordinarily is no broader than U.S. waters. The decision appeared to rule out protection against filling-in or pollution of wetlands not part of actual waterways. The actual impact of the plurality opinion by Justice Antonin Scalia appears to have been qualified by a lengthy concurrence by Justice Anthony M. Kennedy, who supplied a fifth vote for the result. Kennedy’s opinion, it appears, will be the controlling one. After Scalia announced his opinion, Kennedy discussed his separate views.
The vote on the result was 5-4. Justice John Paul Stevens, who authored the dissenting opinion, also spoke from the bench about the dissenters’ views.
The opinions came in the consolidated cases of Rapanos v. U.S. (04-1034) and Carabell v. Army Corps of Engineers (04-1384). The Rapanos case involved Michigan wetlands that lie near ditches or man-made rains that eventually empty into navigable waters. The Carabell case involved wetlands that are physically separated from navigable water, by means of man-made barriers such as an earthen berm, and seldom send water to a navigable stream.
Both cases were returned to lower courts for further action. Justice Stevens, in his dissent, noted that lower courts will have some difficulty deciding how to follow both the Scalia plurality opinion and Kennedy’s separate concurrence. (The opinion, concurrences, and dissents are all available here.)
In the second of three rulings on argued cases, the Court took two differing positions on whether statements that amount to “excited utterances,” made out of court, may be admitted as evidence in a trial, under the 2004 decision in Crawford v. Washington. The Court allowed as evidence the recording of a “911″ call, finding that was not “testimonial.” But it ruled that a statement made by a victim to a police officer at a crime scene was “testimonial” and could not be admitted at trial. Out of court statements that are deemed to be “testimonial” may not be admitted when the person who made the statements is not available to be cross-examined at the trial. (Justice Scalia’s opinion is available here; Justice Thomas’s concurring opinion is available here.) The cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705).
In the third decision of the day, in Samson v. California (04-9728), the Court decided that the Fourth Amendment does not prohibit a police officer from searching a parolee, even without a warrant. (The opinion and dissent are available here.) The Court, in an opinion written by Justice Clarence Thomas, relied heavily upon a 2001 precedent, U.S. v. Knights, allowing a warrantless search of the apartment of a probationer. Parolees, Thomas wrote, have fewer expectations of privacy than probationers. The ruling was by a vote of 6-3.
The Court will issue more opinions in argued cases on Thursday. The Court expects to issue 15 more decisions before recessing for the summer.
But only where that was a condition of their parole, right? This is Samson?
Comment by Simon — June 19, 2006 @ 10:19 am
I’m glad the justices rejected the government’s overexpansive definition of wetland, under which most of the United States is absurdly defined as a “wetland” (because water occasionally trickles from most land in the United States to some place else that in turn eventually trickles into a river that eventually flows into the ocean or navigable waters).
My backyard would have been a wetland under the government’s crazy definition, as would much of Arlington County, Virginia, the major suburban community where I live, and where many Supreme Court justices themselves have lived.
Surely a “wetland” should not include dry land which is already heavily populated.
Comment by Hans Bader — June 19, 2006 @ 10:32 am
I am loathe to comment before the text is available, but the Court having found no federal jurisdiction to protect migratory birds and no federal jurisdiction to protect non-permanent waters, it appears that the entire Corps of Engineers permit system is dead in the water (as it were). There is nothing left but spending clause conditions to which to tie national environmental protection. Look for a lot of mid-western farmers (and real estate developers everywhere) to do a lot of filling before Congress gets around to fixing things (surely not before the election).
Comment by r.friedman — June 19, 2006 @ 10:43 am
Hans,
IIRC, the government has a statutory duty (28 USC §518, maybe?) to defend statutes that are challenged in court, even those it disagrees with. That doesn’t necessarily mean it will do so convincingly; were I the AG, faced with a duty to defend a statute that the administration thought was stupid, I would think that there is a certain machiavellian elegance about presenting an argument in favor of the statute that was too absurd to win.
Comment by Simon — June 19, 2006 @ 10:46 am
I believe that there is a way — although it is seldom invoked — for the SG to decline to defend a statute. I think the SG has to notify the Congressional leadership, and then Congress itself has the option of sending counsel to argue on the law’s behalf.
Comment by Marc Shepherd — June 19, 2006 @ 10:53 am
“The Court barred as evidence the recording of a “911″ call, finding that was not “testimonial.” But it ruled that a statement made by a victim to a police officer at a crime scene was “testimonial.” Out of court statements must meet that definition if they are to be admitted when the person who made the statements is not available to be cross-examined at the trial.”
Scratching my head here. Doesn’t the testimonial stuff stay out and the non-testimonial stuff get in, in which case, the 911 call is not barred and the statement to the policeman is barred? Help.
Comment by ohwilleke — June 19, 2006 @ 11:00 am
SG can decline to support a statute. Wikipedia (for what it’s worth) calls it a confession of judgment.
Comment by Hey_Porter — June 19, 2006 @ 11:06 am
That’s my impression as well, ohwilleke. Under Crawford, the 911 might get in, but a witness statement to police probably wouldn’t.
Comment by mrshl — June 19, 2006 @ 11:12 am
Regarding Davis and Hammon, the Court held that the 911 call was admissible and affirmed, while the other case was reversed and remanded.
http://wid.ap.org/scotus/pdf/05-5224P.ZO.pdf
The main post has been fixed on this point.
I fully expected the state to win Samson, the parolee search case, but the fact it was 6-3 with Justice Ginsburg joining the majority is a nice extra.
http://wid.ap.org/scotus/pdf/04-9728P.ZO.pdf
Comment by Kent Scheidegger — June 19, 2006 @ 11:46 am
Note this from Roberts’ concurring opinion:
“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. This situation is certainly not unprecedented. See Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977)). What is unusual in this instance, perhaps, is how readily the situation could have been avoided.”
Anyone want to read the tea-leaves?
Comment by Commentator — June 19, 2006 @ 12:42 pm
I am pleased to see that the Court has limited the extensive reach of the U.S. Corps with this newly restricted definition of navigable waters. However, I am left wondering if this restricted definition will also prohibit the EPA from responding to oil spills that impact intermittent streams going forward. I believe their ability to respond is predicated on an impact to a navigble water as defined in the CWA.
Comment by K. Nichols — June 19, 2006 @ 12:59 pm
I believe Roberts is on record as beliving that the Court can avoid highly splintered decisions by ruling more narrowly. One would guess that he attempted to encourage his colleagues to do that in this very case. Either Justice Scalia was unwilling to narrow the scope of his majority opinion to get Kennedy to join it; or Kennedy split hairs farther than the Chief thought he should.
Kennedy seems to be taking up O’Connor’s mantle with his “narrowing concurrences” that supply a fifth vote, but limit the scope of a majority opinion.
Comment by Marc Shepherd — June 19, 2006 @ 1:09 pm
Those aren’t the tea leaves I was talking about.
http://www.scotusblog.com/movabletype/archives/2006/06/orders_3.html
http://www.scotusblog.com/movabletype/archives/2006/06/analysis_an_una.html
Comment by Commentator — June 19, 2006 @ 1:17 pm
Eh? First Scalia didn’t write a majority opinion. He wrote a plurality opinion. Second Roberts didn’t have to join in Scalia’s plurality opinion if he didn’t want to. Since it’s only a plurality opinion and not a majority opinion, Scalia’s opinion doesn’t even have the force of a precedent.
Comment by Dan the Man — June 19, 2006 @ 1:34 pm
Re Samson, can anyone tell me the difference between a “suspicionless” search and an “arbitrary” one?
Comment by Adamos — June 19, 2006 @ 1:36 pm
Marc:
I have actually previously suggested that Roberts’ remarks at Georgetown have been misinterpreted, and that our Fearless Leader’s primary concern is not to obtain narrow rulings per se, but rather, to promote stability in the law by handing down opinions that command as many votes as possible, in general, and avoiding these messy pluralities, in particular. Thus, I would humbly suggest that the remarks in his concurrence today (”[i]t 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“) could be read to support that view.
Comment by Simon — June 19, 2006 @ 2:09 pm
Yeah, but thanks for ignoring the precedent he chose to cite in order to make his point, Simon.
Comment by Commentator — June 19, 2006 @ 2:13 pm
Commentator – I didn’t see the revelance of the Grutter citation to the point I was making, and so I didn’t quote it.
Comment by Simon — June 19, 2006 @ 2:28 pm
Which is exactly my point. Citing Grutter does no work here, except to signal what Roberts is gonna do.
Comment by Commentator — June 19, 2006 @ 2:48 pm
It is utterly ridiculous to suggest that the federal definition of “wetland” or “waters of the United States” includes “most of the United States,” or any land on which “water occasionally trickles,” or “much of Arlington County, Virginia.” The definition is scientifically based and turns on the vegetation typically associated with wetlands. There are roughly 100 million acres in the lower 48 that fall within the federal definition, which is a small percentage of total U.S. acreage.
Comment by Tim Dowling — June 19, 2006 @ 3:17 pm
On the refusal-to-defend-the-statute point, that issue came up when the Clinton Administration declined to defend the anti-Miranda statute at issue in U.S. v Dickerson. Michael O’Neill, now counsel to the Senate Judiciary Committee, detailed that debate nicely in Part VII of a 2000 law review article that happens to be available for free online.
http://www.findarticles.com/p/articles/mi_qa3736/is_200001/ai_n8902410/print
Also, Walter Dellinger wrote an OLC memo, “PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, that touched on the issue, back in 1994. There’s a 1980 OLC opinion on the subject, too.
http://www.usdoj.gov/olc/nonexcut.htm
Comment by Adam White — June 19, 2006 @ 4:20 pm