By JOAN BISKUPIC
WASHINGTON, D.C., Nov. 01, 2000 (USA TODAY)—A wary Supreme Court heard arguments Tuesday over the federal government's attempt to block a group of Chicago suburbs from turning remote wetlands into a trash dump because migratory birds nest on the land.
The dispute over the scope of the federal Clean Water Act is one of two environmental cases before the court that will determine how far federal agencies can go in trying to protect water and air quality. Besides raising ecological issues, the Chicago case and one involving smog standards and their costs to businesses are the latest in a series of tests of the limits of federal authority.
Several key justices suggested by their questions Tuesday that the court might be poised to continue its pattern of ruling that the federal government has improperly trod on states' territory, this time by trying to regulate isolated ponds that attract mallards, Canada geese and other migratory birds.
A group of 23 Illinois municipalities sued the Army Corps of Engineers after being denied a permit to create a landfill on about 18 acres of ponds and small lakes at a 533-acre site that straddles Cook and Kane counties and had long ago been a strip mine. The corps says the federal Clean Water Act gives it authority over even shallow ponds and that its authority to protect the migratory, water-dependent birds there derives from federal power to regulate interstate commerce. It noted that bird hunting and watching generate billions of dollars of commerce annually.
But in oral arguments Tuesday, lawyer Timothy Bishop, representing the municipalities, said Congress never intended the corps to regulate such shallow, isolated ponds. He contended that the section of the Clean Water Act that prohibits the discharge of landfill material into "navigable waters" applies only to waters that can be traversed or improved for such a purpose.
Congress wanted to protect the nation's water, Bishop asserted, "but it was very cognizant of states' rights." The suburbs maintain that the corps' interpretation would reach virtually every body of water in the USA — including seasonally wet areas in people's backyards — and significantly usurp local control over land use.
Deputy Solicitor General Lawrence Wallace, representing the corps, countered that the history of the federal law from 1972 demonstrates Congress sought to protect even small wetlands unconnected to interstate waters. Wallace said lawmakers wanted to comprehensively prevent water pollution and gave the corps broad jurisdiction.
Justice Sandra Day O'Connor, implying at one point that the federal government had assumed a role reserved for the states, asked, "Has Illinois shown no interest or concern about this particular site?" Bishop said the state had held numerous hearings and undertaken many investigations before finding the project environmentally sound.
Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy also seemed particularly skeptical of the federal regulation. They, along with O'Connor and Justice Clarence Thomas, have formed a consistent majority to strike down federal provisions that they say impinge on traditional state authority.
Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, who have objected to the court's curtailing of federal power, seemed most sympathetic to the corps' position. But Justice David Souter, who usually joins those dissenters, challenged the government, saying its stance would cover "literally any farm pond." A ruling in Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers is expected by summer.
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