The great comfort of visiting the Supreme Court is that nothing ever changes there, so there is nothing to see. This works out nicely for two-thirds of the press corps, who can only ever see a wall of white marble columns. Duck in to “watch” an oral argument, and you have that cozy familiar feeling of visiting your grandma: Close your eyes and you know just where the porcelain ballerina is, which is why today’s visit feels like a trip to grandma’s, except for some reason the couch is on the roof.
I knew that Alito would be in, O’Connor would be out, and all the justices would shift their seats like teams swapping sides during a volleyball game. But that hasn’t prepared me for the whole matter/antimatter feel of it: Justice Stephen Breyer doesn’t seem to know what to do with himself, having migrated from the right side of the court to the left. Justice Ruth Bader Ginsberg looks smaller now that she isn’t occupying the corner office. Justice Samuel Alito, who asks one question three minutes into oral argument then remains silent for the rest of the case, can’t seem to sit still; twitching, shifting, gulping his water, and trying out the various rocking settings on his chair. It’s like he thinks we are all staring at him, which we are.
The cases are Rapanos v. United States and Carabell v. United States Army Corps of Engineers, two consolidated challenges to the 1972 Clean Water Act. The question in each case is whether the CWA—which bars the discharge of pollutants into “navigable waters” without a government permit—can stop developers whose wetlands drain into non-navigable tributaries (that may, in turn, flow into navigable bodies of water). Both Rapanos and Carabell sought to fill in their wetlands to build, respectively, a shopping mall and a condominium complex in Michigan. Rapanos’ land borders a non-navigable tributary that flows into a river. Carabell’s is separated from a drainage ditch by a man-made berm. That ditch connects to a drain, which connects to a creek, which connects to a lake.
And the green grass grew all around, all around.
The federalism/states’ rights issues are the more interesting ones, but the day is largely spent parsing statutory language. The CWA gives jurisdiction over all “navigable waters.” But where, precisely, do those navigable waters begin?
Both Rapanos and Carabell lost in the lower courts. Both contend that the CWA doesn’t contemplate wetlands adjacent to non-navigable waters, and that the federal government is overstepping its authority in usurping state and local prerogatives. The government urges that the definition of “navigable waters” must encompass wetlands that will impact those waters, even if they aren’t connected in obvious ways. M. Reed Hopper represents Rapanos, the less attractive of the two landowners. (He decided not to file for a permit, dredged his land, and annihilated 54 acres of wetlands over the government’s strenuous objections). Hopper opens by disparaging government efforts to regulate the merest “trickle.” Justice Antonin Scalia immediately interrupts to ask whether he even wants to concede “trickle.” The government here seeks to claim jurisdiction even over “ditches without a trickle.”
Justice David Souter points out that the purpose of Congress’ regulation was to stop the “poison” before it hits navigable waters; and that under the developers’ view of the CWA, “all the evil polluters have to do is get far enough upstream to dump and Congress can’t do anything.” Chief Justice John Roberts, who is indistinguishable from Greg Kinnear except when he lets his glasses slide down his nose to make him look older, asks what words like “tributary” and “navigable” and “hydrological connection” even mean.
Carabell’s lawyer, Timothy Stoepker, urges that there is just “no connection between these wetlands and navigable water of the United States.” Justice John Paul Stevens inquires whether the government can at least step in when “there is no hydrological connection today, but after you’ve built your project there will be a hydrological connection?” Scalia says that test is wrong: “Is this a water of the United States or not. It either is or it isn’t.” Souter disagrees, rephrasing Stevens’ question such that “if a project will result in a polluted discharge later, it is water of the United States now,” otherwise, “Congress will have passed a statute that says it will lock the barn door after the horse is gone.”
Solicitor General Paul Clement has 40 minutes to defend against all this while Scalia and Roberts take turns punishing him with the hydrological connection stick. Scalia—who last week announced that proponents of a “living constitution” are “idiots,” tells Clement that it’s both “absurd” and “extravagant” to call a drainage ditch “waters of the United States.” Roberts asks whether “one drop of water a year” constitutes a significant nexus to navigable waters. And Scalia invokes “storm drains,” “puddles,” and “rain water” to imply that all of this controversy involves trivial, ugly, brown water.
Justice Stephen Breyer speaks for the first time at the end of the argument, to ask Clement for empirical evidence that wetlands really do act as a sponge. The new gestalt seems to be to assume that the federal government is trying to gobble up private landowners’ and states’ rights, even where it seems clear, as here, that the states themselves want it to play that role, and that the consequences to the environment might be disastrous.
The lines outside the court today are enormous. It’s like the whole world expects the sea change anticipated by the Alito nomination to happen instantly. And while there are certainly early hints that the times they are a-changing—the court agrees to hear the federal partial-birth abortion ban, the court unanimously sides with religious freedom over drug interdiction—the real change is still imperceptible: New faces sit in new spaces. The brass-tacks questions from O’Connor are gone, replaced by a quorum of brash young voices disparaging this fastidious concern over “puddles, next to ditches, next to storm drains.” Like Breyer, I don’t pretend to know the empirical answer to where pollution starts—at the storm drain, the ditch, or the puddle. But I am reasonably confident that the sea change starts right here.