John,
I don't consider environmental laws libertarian. Nor do I
consider weakening them, or any other such
prohibition/regulation/legislation, anti-libertarian.
-Mark
************
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case, no matter the evidence - despite the judge's instructions.
There is absolutely no obligation to vote "guilty" to arrive at a
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-------------------------
The 'new and improved' Bush Supreme Court has shown it's true
intent.
They will work to bring about the neocon agenda...weaken the
environmental laws it took decades of hard fighting to bring
about. IT
is amazing how Supreme Court Justices can work for a neocon
cause. If
ANY branch needs to be impartial it is the Supreme Court. Not so.
First blow struck today against Clean Water Act...read below.
God help us if we don't take back the government soon.
Oh...ps...it says this went AGAINST the Bush agenda....but oh
contrare...Bush and boys are simply taking an opposite position
than
they have taken all along in order for it to appear the Justices
aren't
working with them. Thank Mr Rove.
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.''
Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter
also
dissented.
The ruling is a partial setback for environmentalists and the
Bush
administration, which argued in favor of broad federal power to
restrict
development.
Kennedy's test has ``never been applied or used anywhere,'' said
Joan
Mulhern, senior legislative counsel at Earthjustice, an
environmental
group based in Oakland, California. ``I'd hesitate to say I agree
with
it or to say I don't agree with it because I'm not sure what it
means.''
Groups backing the landowners included homebuilders Pulte Homes
Inc. and
Centex Corp. and trade associations representing the real-estate,
oil
and farming industries.
``The court is clearly troubled by the federal government's view
that it
can regulate every pond, puddle and ditch in our country,'' said
Reed
Hopper, a Sacramento, California, lawyer who represented
landowner John
Rapanos in one of the cases. ``We are encouraged by this decision
and
believe it represents a good first step toward common sense
regulation.''
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.
Separately, the court today ruled that crime victims' statements
to
police 911 operators about an ``ongoing emergency'' can later be
used as
trial evidence when the victim isn't available for
cross-examination.
The court also:
-- Asked the Bush administration for advice on a securities-
industry
bid to block antitrust lawsuits that accuse investment banks of
rigging
initial public offerings.
-- Agreed to consider a bid by Michigan to regulate Wachovia
Corp.'s
mortgage-lending business in a case that may open banks to new
oversight
across the country.
-- Broadened its review of a federal law banning what opponents
call
``partial-birth abortion'' by adding a California case to its
2006-07
argument schedule. The justices were already set to hear
arguments from
a group led by a Nebraska doctor.
Juvenile Murderers
-- Refused to reconsider its year-old decision barring executions
of
murderers who were under 18 at the time of the crime, turning
away an
appeal by Alabama's attorney general.
-- Refused to question Swedish Match AB's right to sell cigars in
the
U.S. under the Cohiba brand name, turning away an appeal by a
company
owned by the Cuban government.
-- Rejected a challenge by five states to part of the funding
mechanism
for the new Medicare prescription-drug program.
The two wetlands disputes raised slightly different questions.
Rapanos
was accused of destroying wetlands, without a permit, on three
central
Michigan sites he hoped to develop. Regulators are seeking as
much as
$13 million in fines and restoration of the site.
Nearest Tributary
The Cincinnati-based 6th U.S. Circuit Court of Appeals concluded
that
the Clean Water Act covered Rapanos's property because the land
had a
hydrological connection to navigable waterways, ultimately
draining into
either the Tittabawassee River or Lake Huron. Rapanos says his
land is
far away from the nearest tributary -- 20 miles in the case of
one site.
In the second case, a group led by accountant Keith Carabell
wants to
build a condominium complex on land near Detroit. The 6th Circuit
said
the property was an ``adjacent wetland,'' covered under the Clean
Water
Act, because only a man-made barrier separated the land from
tributaries
of Lake Huron and Lake Erie.
Carabell says no hydrological connection, either on the surface
or
underground, exists between his land and any tributary. The Bush
administration disputes that contention.
The court scaled back the clean-water law in 2001, when it struck
down a
Corps of Engineers rule designed to protect migratory bird
habitats on
local ponds. The justices in that case said the rule lacked a
``significant nexus'' to the ``navigable waterways'' that are
covered
under the Clean Water Act.
Environmental Consequences
Kennedy today said the ``significant nexus'' phrase provides the
key to
applying the Clean Water Act, even though that language doesn't
appear
in the statute itself.
In the Rapanos case, Kennedy pointed to expert testimony about
the
environmental consequences of developing the land and a trial
judge's
finding of a surface connection to tributaries of navigable
waterways.
He said that type of evidence would help the Corps make its case,
``particularly if supplemented by further evidence about the
significance of the tributaries.''
At the same time, Kennedy said the appeals court went too far in
permitting regulation any time a hydrological connection exists.
``Absent some measure of the significance of the connection for
downstream water quality, this standard was too uncertain,'' he
wrote.
In the Carabell case, Kennedy said the lower courts should assess
``the
quality and regularity of flow in the adjacent tributaries.''
Scalia would have required a continuous surface connection to a
river,
lake or other permanent body of water, saying that was the most
plausible reading of the Clean Water Act's language. He said
Kennedy
``has devised his new statute all on his own.''
Stevens would have upheld the 6th Circuit's ruling, saying the
Corps
``has reasonably interpreted its jurisdiction to cover
non-isolated
wetlands.''
[Non-text portions of this message have been removed]
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