Justices Limit 1972 Clean Water Act Conservatives Carry Issue, 5-4

Article excerpt

WASHINGTON -- Placing new limits on the scope of a key environmental law, a narrowly divided Supreme Court ruled yesterday that a federal agency could not block a landfill project in northwestern Cook County, Ill., solely because the proposed site contained isolated ponds and trenches used by migratory birds.

The 5-4 decision, written by Chief Justice William Rehnquist, is the latest in a line of cases in recent years to restrain the federal government from intervening in seemingly local matters traditionally handled by states. Although it stopped short of a sweeping ruling on constitutional grounds, the majority emphasized that the federal government should have left the battle over the proposed landfill to Illinois and Cook County.

Permitting the federal government to regulate isolated ponds and trenches used by migratory birds, the court said, would "result in a significant impingement of the states' traditional and primary power over land and water use." As a result, the court shot down the U.S. Army Corps of Engineers' efforts to assert jurisdiction under the Clean Water Act.

The dissenting justices didn't see the issue as local. Justice John Paul Stevens, writing for the dissenters, said the ruling "needlessly weakens our principal safeguard against toxic water."

Stevens said federal regulation was necessary, particularly because the benefits of a new landfill would be disproportionately local, while the costs -- fewer migratory birds -- would be borne by citizens living in other states. He was joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Numerous environmental groups assailed the decision, warning it could jeopardize up to 20 percent of the bodies of water in the United States because many states, they said, don't provide adequate protection.

"One of the ironies is that they are preserving states' rights to deal with the matter, but a great many states don't," said Tim Searchinger, senior attorney of Environmental Defense, who wrote a friend-of-the-court brief in the case. "The argument for states' rights is an argument for no environmental protection, in many cases."

The case has obvious practical importance for the Chicago area because it allows the Solid Waste Agency of Northern Cook County to proceed with plans to build the 142-acre landfill near northwest suburban Bartlett, Ill. The agency, a group of 23 municipalities, has been battling to build the project for 14 years.

Some have suggested that the landfill is no longer economical, but George Van Dusen, Skokie, Ill. …