Court Properly Restrains Feds’ Worst Wetlands Excesses, But Ruling Could Ultimately Leave Federal Agencies With Broad Wetlands Authority

“Multitude of court opinions” shows that “Congress must act to clarify the law”; Problem of legal uncertainty particularly acute for Michigan

For Immediate Release

Patrick J. Wright, Senior Legal Analyst
Phone: 989-430-3912

Russ Harding, Senior Environmental Policy Analyst
Phone: 989-430-8664

MIDLAND, Mich. — The U.S. Supreme Court’s 5-4 ruling today "delivers a welcome victory by curtailing federal regulators’ overbroad reading of their wetlands regulatory powers," said Mackinac Center Senior Legal Analyst Patrick J. Wright. "But at the same time, the ruling sets an ambiguous precedent that could leave few checks on federal agencies’ ability to regulate Americans’ private property."

Wright added: "The court’s ruling restrains some of the Army Corps of Engineers’ worst excesses and requires that wetlands ‘significantly affect’ navigable waters before being subject to federal regulation. But lower courts will generally defer to regulators in determining what’s ‘significant,’ and many regulators will set guidelines that let them exercise discretion over lands far removed from navigable waters. This is a result close to what federal regulators originally asked for in front of the Supreme Court."

Russ Harding, the Center’s senior environmental policy analyst, observed: "It was encouraging to see the court of appeals’ findings vacated, but responsibility for the multitude of Supreme Court opinions really should be laid at the feet of Congress. In its offhand manner of writing the Clean Water Act, Congress abdicated its responsibility to set policy and provided language so broad that federal agencies were able to abuse Americans’ property rights. In fact, the language was so vague that not even a majority of the U.S. Supreme Court justices could agree on the act’s meaning.

"Congress must act to clarify the law," continued Harding, a former director of the Michigan Department of Environmental Quality. "This is particularly important for the people of Michigan. They live on a peninsula filled with lakes, rivers and streams. The most difficult wetlands cases will involve their property, and the court’s ruling falls short of giving Michiganians the clarity they need to comfortably exercise their property rights. That’s particularly problematic given Michigan’s troubled economy. Until Congress acts, we can only hope that federal regulators will show some discretion and acknowledge the court’s check on their power."

The Mackinac Center for Public Policy is a research and education organization headquartered in Midland, Mich.