Today’s Oral Arguments in U.S. Supreme Court Wetlands Cases Suggest Court Is “Concerned About Federal Encroachment”

Former director of Michigan Department of Environmental Quality and Mackinac Center attorney attend today’s hearing

For Immediate Release

Contacts:
Patrick J. Wright, Senior Legal Analyst
Phone: (989) 430-3912
Russ Harding, Senior Environmental Policy Analyst
Phone: (989) 430-8664
Michael D. Jahr, Communications Specialist
Phone: (202) 302-4328

MIDLAND, Mich. — After attending oral arguments at the U.S. Supreme Court this morning in two pivotal cases involving federal wetlands regulation of Michigan properties, Patrick J. Wright, senior legal analyst for the Michigan-based Mackinac Center for Public Policy, observed, "Members of the court were obviously concerned about federal encroachment on state and local governments’ traditional control over land-use decisions." The two cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, address the scope of the federal government’s powers to regulate wetlands that are distant from navigable waters. Wright, who submitted the Mackinac Center’s "friend of the court" brief in support of the landowners in the cases, was present at the hearing this morning along with Mackinac Center Senior Environmental Policy Analyst Russ Harding, a former director of the Michigan Department of Environmental Quality who has followed the Rapanos case closely.

Wright added: "The justices’ focus on the federal-state balance of power is appropriate, since that balance lies at the heart of our federalist system of government. The justices clearly recognized that declaring every drainage ditch a potential tributary to a navigable water would give the federal government virtually unlimited control over land use, since most roads and many private properties in America are bordered by drainage ditches or storm drains." Wright expects the court’s decision to be a close one that will determine the extent of federal wetlands regulation for years to come.

Harding commented: "Some of the justices seemed worried that without federal regulation, wetlands and navigable waters might be left vulnerable to polluters. But state and local governments already have ample regulations concerning water pollution, and a ruling against the federal government in these cases will not leave America’s waters exposed to harmful emissions."

The Mackinac Center is a nonprofit research and educational institute headquartered in Midland, Mich. A general description of the Rapanos and Carabell cases is available at http://www.mackinac.org/7596. The Mackinac Center’s "friend of the court" brief is available at http://www.mackinac.org/7454.

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