Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson, who supported the ban
WASHINGTON — A divided Supreme Court signaled Sunday that it is ready to take up the issue of wetlands protection on the state level and could soon end a decades-long effort to keep the government from protecting the vast acreage of river meadows, sandbars and beaches that dot the nation’s coasts and waterways.
The justices heard arguments in cases brought by the Center for Biological Diversity and South Carolina’s Department of Natural Resources over whether a 1996 federal law authorizing the president to list 2.7 million acres of federal wetlands for potential expansion should apply to coastal areas where the waters were once coastal marshlands, not wetlands.
Justice Anthony M. Kennedy, in a closely divided opinion, sided with environmentalists who argued that the federal law, the Clean Water Act, does not override state laws in the four states covered by South Carolina’s decision.
Kennedy was joined by two other justices in a 4-3 decision that took no position on the central question in the case, whether the Clean Water Act overrides a state policy barring wetlands restoration. The decision leaves in place lower court rulings that protect all types of coastal wetlands in South Carolina, the only state that does not consider them coastal marshes.
The dispute comes as the Justice Department is seeking to expand the Clean Water Act to protect most of the nation’s wetlands. In his first year in office, President Obama asked the solicitor general to develop a plan to expand the Clean Water Act, citing the need to improve water quality. A federal appeals court is considering a challenge by the Center for Biological Diversity to the administration’s plan.
On the other side of the divide, the South Carolina Wildlife Resources Commission has a different take: it would restore nearly all of the state’s 2,700 miles of coastal wetlands. After decades of litigation, the commission in 2002 ordered its first restoration work.
Among those at the oral argument Sunday was Sen. Ben Cardin, D-Md., who was the ranking Democrat on the Senate Environment and Public Works Committee. He said the dispute was about “protecting the public’s health and their
