Supreme Court Rules in Favor of Protecting Wetlands and Streams

Tied (4-4) ruling upholds lower court decision




Suzanne Carrier, x. 213

Earthjustice today lauded the Supreme Court’s 4-4 affirmation of a lower court ruling protecting wetlands from damaging agricultural operations. The Court heard oral arguments last week and ruled this morning. Addressing one of the most crucial environmental cases on the Supreme Court’s docket this term, Earthjustice filed a brief opposing attempts by agricultural, mining, and roadbuilding interests to accelerate unpermitted destruction of wetlands and streams around the nation.

“The Supreme Court declined industry’s invitation to open major loopholes in the Clean Water Act,” said Howard Fox of Earthjustice, attorney for the conservationists. “Industry should start focusing its efforts on protecting our precious wetlands and streams, instead of seeking special breaks from the courts.”

At issue in the case are activities on a California ranch that destroyed and damaged numerous wetlands and streams, in order to convert them to crop production. The US Army Corps of Engineers and the US Environmental Protection Agency concluded that such activity could not be undertaken without a permit, and federal district and appellate courts in California agreed. The Supreme Court ruled 4-4 today; Justice Kennedy recused himself. In the case of a tie, the appellate court’s ruling is upheld.

A wide range of industry interests asked the Supreme Court to reverse the lower court’s ruling. Representing proponents of agriculture, as well as of mining, roadbuilding, homebuilding, and other infrastructure projects, they claimed they should be allowed to damage and destroy wetlands and streams without a permit. Also, they asked the Court to reject the interpretation of the Clean Water Act underlying a key 2001 wetland and stream protection rule, despite support for the rule by both the previous administration and the present one. (See

Earthjustice filed a friend-of-the-court brief on behalf of National Wildlife Federation, Sierra Club, Natural Resources Defense Council, and National Audubon Society. Oral argument in Borden Ranch Partnership v. U.S. Army Corps of Engineers, U.S. Sup. Ct. 01-1243, was heard on December 10. The decision came down this morning.


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