Supreme Court wetlands rulings could have local impacts |

Supreme Court wetlands rulings could have local impacts

summit daily news

KEYSTONE ” It’s not a stretch to say the most recent appointments to the U.S. Supreme Court could ultimately have an effect on local interests here in the High Country.

In its latest configuration, the court recently heard arguments in a pair of wetlands cases. The impacts of the decisions could reach all the way to Summit County, determining how much authority federal agencies such as the Corps of Engineers and the EPA have over local land-use decisions that affect wetlands.

“The key word is balance. We need more balance,” said Summit County Commissioner Bill Wallace. “It’s a pendulum thing,” he said, adding that, sometimes federal regulations don’t make much sense in a local context.

Wallace said the long-running discussion over water quality and acid mine drainage in French Gulch near Breckenridge is a perfect example.

“The hoops we’ve had to jump through with the Golden Horseshoe are unbelievable,” Wallace said, referring to federal involvement in that process. Rather than trying to shoehorn local resource management into a federal one-size-fits-all policy, Wallace said he’d rather have the federal agencies look at local regulations and adapt their regulatory scheme to those parameters.

That balance between federal and local interests can also be achieved through collaboration, said Summit County open space resource specialist Brian Lorch, who has worked with the EPA on grant funding for local environmental efforts. Lorch said that, on a staff level, the local and federal governments are already working together to address environmental issues related to wetlands and water quality.

At issue in the Supreme Court wetlands cases is the definition of navigable federal waters, and how far federal jurisdiction extends up the tributaries of rivers and streams. Underlying those arguments is whether and how the court will redefine the balance of regulatory power between state and federal authorities based on the judicial philosophies of the new justices.

This balance of power was discussed Friday during a panel discussion at the American Bar Association’s environmental law conference. Legal experts, including attorneys who have argued cases before the Supreme Court, took a look at the judicial records of Chief Justice John Roberts and Justice Samuel Alito, trying to discern how they compare to the two justices they replaced, Chief Justice William Rehnquist and Justice Sandra Day O’Connor.

O’Connor and Rehnquist were middle-of-the-road when it came to environmental rulings, voting “with” the environment 31 percent and 36 percent of the time respectively, said panel moderator Barton H. Thompson, Jr., natural resources law professor at Stanford University.

It’s unlikely that the most recent appointees will approach that rating, said panelist Nan Aron, president of the Alliance for Justice, a national association of public interest and civil rights groups. A careful scrutiny of Roberts’ and Alito’s judicial history raises grounds for “extreme concern” from the standpoint of environmental interests, Aron said. The two new justices are much more likely to challenge the federal government’s authority to address environmental issues, she explained.

According to Aron, Roberts is the only federal judge ever to strike down part of the Endangered Species Act, in a ruling involving threatened toads in California.

Those concerns are part of a liberal tactic of “fear-mongering” when it comes to fighting conservative judicial nominees, said panelist Sam Kazman, of Competitive Enterprise Institute, a conservative free-market think tank.

Kazman said from his group’s perspective, what’s needed to improve environmental regulation is a very clear demarcation of private property rights and a de-centralization of environmental regulation.

“We need a very clear stopping point to federal power,” Kazman said.

Kazman questioned whether the federal government should, for example, play any role in regulating land-use decisions that affect rare insects living out their entire life cycles in a cave in Texas, or toads that never leave their habitat in one specific California county.

Two other panelists, both with experience arguing cases before the Supreme Court, said they don’t think the court’s environmental decisions will be swayed drastically in any direction by its newest members.

“Do either of these justices have a personal commitment to social causes like the environment?” said attorney Edward C. Dumont. “I don’t think they’re going to pick up briefs and say, ‘Ah ha, here’s my chance to protect the environment,’ or to do the opposite,” Dumont said.

But he did acknowledge that other factors, including the concept of federalism and “core power” lying with the states, could affect the outcome of environmental cases.

Based on their records, Roberts and Alito could be expected to ask the federal government to show a clear purpose for overriding state interests, and also have a record of showing deference to administrative agencies when decisions are properly made, Dumont said. That means the new justices won’t lightly support challenges to government agencies in environmental cases.

Donald Ayer, who has argued before the Supreme Court 18 times, said he is mildly optimistic that the new court will confirm the traditional approach to federal environmental regulation. But he said the pending decisions in the wetlands cases (arguments were heard Feb. 21) will surely raise the questions of where state powers begin and federal powers end.

Bob Berwyn can be reached at (970) 331-5996, or at

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