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Tuesday, February 21, 2006 

Don't Drink the Water

Today, the Supreme Court heard oral argument in two Clean Water Act cases, Rapanos v United States and Carabell v United States Army Corps of Engineers. Without getting too far into the CWA, the cases hinge on whether the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters (which are covered by the CWA). This is a Commerce Clause case (the CWA was enacted by Congress under its Commerce Clause power), so it is likely to give us an insight to the general Commerce Clause views of Roberts and Alito.

Normally, I can't stand Slate's Dahlia Lithwick, but she does cover oral arguments well. Her article really captures the mood and atmosphere in the room. Here's a portion...
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.
Based on this exchange and his dissenting opinion in Rancho Viejo, LLC v Norton (better known as the "hapless toad" case), I think it's likely that the Chief will be siding with the plaintiffs. Alito is probably a lock too, but those are just my predictions.

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