Supreme Court Dispatches

Chicago’s Big Bird Bath

Each morning before oral argument at the Supreme Court, a number of attorneys are sworn in as members of the Supreme Court bar. The entire exercise is one of rote formalism. The attorneys are introduced, they stand, routine sentences are spoken, an oath is sworn, Chief Justice William Rehnquist admits them all to the bar. They sit. Oral argument begins.

Because the swearing in is an exercise in repetitive stage business, most of the justices use these four minutes to flip through the briefs before them, or to whisper among themselves, or to slug water and peer around the room. But I can aver that after a year of watching this process, Justice Ruth Bader Ginsburg has never once failed to look at every attorney as their name is being called. She never fails to bestow a huge smile—like a mamma bird with a worm—as they are sworn in.

For anyone who enjoys the sarcophagus quality of the high court—the feeling that nothing has ever lived or loved or shed a tear in that room—the notion of a justice beaming down upon the new admittees to the bar like a proud mother hen probably doesn’t sit well. Oliver Wendell Holmes most likely wasn’t all about sunshine on the bench. But my guess is that for the men and women being sworn in on any particular day, the recognition on the part of just one justice that they are more than just the daily veal in the life of this court is worth something. It’s one of the few human moments you’ll witness in there.

Today’s case, however, is full of human moments—of the not-very-nice variety. Reporters walk out looking a little queasy, and at least one attorney isn’t going to sleep for a long, long time without replaying it in his head.

The case is Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and the subtitle might as well be “Garbage v. Birds” or, more accurately, (sigh) Local vs. Federal Government, Act MCIXI. I arrive at the court expecting busloads of environmentalists in Sherpa hats and Birkenstocks, but the court steps are covered with hip environmental lawyers in leather jackets and sideburns. As ever, they manage to make it hip to be green.

SWANCC is a consortium of 23 suburban Chicago cities trying to address their garbage problem. It bought a 533-acre parcel of land to use as a “balefill”—a landfill for baled, compacted, nontoxic waste. The land was actually a strip mine 50 years ago, but over time, it has developed into a rather lovely woodland known as an “early successional-stage forest.” The trenches and depressions left behind by the mines have turned into over 200 ponds and puddles on which over 100 species of birds have been observed.

We’ve got your mallards. We’ve got your wood ducks. We’ve got Canada geese and kingfishers and redwinged blackbirds. And don’t even get me started on the blue herons.

While Mother Nature was reclaiming her strip mine, SWANCC was seeking permission to fill in those ponds and start dumping trash. To do so, they needed a permit from the Army Corps of Engineers, who are empowered under Section 404 of the Clean Water Act to protect the “navigable” waters of the United States. While the Clean Water Act doesn’t do much to define “navigable,” a host of case law, regulatory law, and a preamble to the Army Corps Regulations drafted in 1986 go a long way toward doing so. The preamble actually interpreted the act’s jurisdiction over “navigable waters” to include not only navigable waters in its obvious sense, but also waters that might in some way implicate interstate commerce, and also (enter the “bird rule”) any body of water in the land that is used or could be used as a habitat by migratory birds. Since under this analysis, the bird rule authorizes federal jurisdiction over your neighbor’s outhouse and your kids’ plastic Pokémon wading pool, SWANCC sued, contesting the government’s jurisdiction to enforce the bird rule.

There are two prongs to SWANCC’s claim. Its broadest constitutional argument is that Congress had to grant the Army Corps jurisdiction over isolated, intrastate waters. Their other, statutory argument is simply that the Corps’ interpretation of its own regulations went too far in including the protection of migratory birds within the definition of “navigable waters.”

The district court and the 7th Circuit Court of Appeals both found for the Army Corps. In fact, in one of the most exquisitely ironic moments in jurisprudential history, the 7th Circuit found that protection of the natural habitats of migratory birds “substantially affects interstate commerce” because “throughout North America, millions of people annually spend more than a billion dollars on hunting, trapping and observing migratory birds.”

Congress must save the birds so we may kill them.

Timothy Bishop, arguing for SWANCC, wants the court to know that allowing the Army Corps to define “navigable waters” to include endangered birds’ habitats will give the federal government jurisdiction over potholes and puddles and ditches. “The sky is falling,” he clucks. While Supreme Court precedent in a 1985 case, United States v. Riverside Bayview Homes expanded “navigability” to include not only navigable waters but also any water that discharges into any navigable waters, Bishop is bristling at yet another power grab by the feds into isolated bodies of water that exist solely intrastate. As he tells Ginsburg, navigable waters and waters “adjacent thereto” excludes only a small proportion of waters, which are totally isolated, and which the Clean Water Act does not purport to target.

Justice Sandra Day O’Connor asks whether a body of water cannot be isolated, intrastate, yet still be “navigable” by rowboats and sailboats. Bishop says something about the boats needing to be commercial, and Justice John Paul Stevens launches into a sort of cuckoo-clock colloquy by asking Bishop whether the government wins if they merely prove that a rowboat might fish on one of the ponds in question. If you can punt on it, it’s navigable.

Justice Antonin Scalia presses Bishop on why he even cares about the interstate commerce aspect of the case, given that the statutory language only authorizes jurisdiction over “navigable” waters. Bishop, who is arguing both that only a tiny fragment of waters are left out of the Section 404 (remember, the part of the Clean Water Act about “navigable” waters?) definition and also that 404 “leaves enormous regulatory powers to the states,” sets himself up for a question Justice Stephen Breyer will bring up later: Exactly how many bodies of water can we be talking about here? And Bishop admits that if the court limits its decision to the statutory argument, Congress can just go back and amend the definition of “navigable” waters to allow for the bird rule. This is why, he begs, the court should decide the larger Commerce Clause issue and find that any effort to impose the bird rule is unconstitutional. He cites statutory language to support his argument that “Congress intended to preserve the primacy of state and local governments.”

The issue in this case comes down to another one of those double-edged swords. If SWANCC wins, the federal government’s power to protect scarce wetlands will evaporate. If the government wins, state and local governments will lose authority over not only wetlands, but possibly ranches, mines, farms, and real estate decisions any time a drop of water rolls across the water table. This is why interest groups from the National Cattlemen’s Beef Association to the American Forest and Paper Association have weighed in with two dozen friend-of-the-court papers.

Lawrence Wallace, a deputy solicitor general with the Justice Department, should have the easy side of the argument since the Corps has prevailed in both lower courts. Still, he is intent on delivering a lecture and not only interrupts the first two questions put forth but also explains why it’s necessary for him to make some predicate argument before even answering. This gets Rehnquist’s dander up to the point that he interrupts Wallace to growl, “If a justice is asking a question, I suggest you remain quiet until he finishes, if that’s not too much trouble.” Wallace, who was nervous and stumbling before this, attempts to apologize, interrupts himself to explain himself, and apologizes again. Miserably, he starts to speak and scores several moments of uninterrupted argument time to read from dry legislative history and footnotes of cases.

It’s Justice Ginsburg who saves him, asking about the definition of “navigable” under the CWA, which opens the door for Scalia to swoop down like the raven of the night and pin him on why Congress would use the word “navigable” if they meant to have it ignored. Thomas simply watches the proceedings like a hawk. Waiting, waiting to curb the jurisdictional reach of the Army Corps in writing, if not in spoken words. The rest of the argument is mainly just dispiriting. Watching all the air go out of a room you had already believed airless proves to be less empirically interesting than it sounds. Wallace staggers through the rest of his presentation and collapses. The court is left, like the Lorax, to decide who speaks for the trees, who speaks for the geese, and who speaks for the garbage.

Will the court hand down another 5-4 decision restricting congressional Commerce Clause power? Probably. Will Chicago ever find a place to dump its trash? Probably. Will Lawrence Wallace ever argue before the court again? I’m thinking his goose is cooked.