Property LawThe US supreme court is considering the cases of two small landowners who have been denied permission to develop their property on the grounds that they own pieces of wetland, and building on them could harm the wider environment, writes Patti Waldmeir
For decades, most Americans have seen the courts as an ally in the fight against pollution: big bad companies want to spoil the air and water; thank heavens the courts are there to stop them.
These days, however, corporate America is not the only villain. Courts are increasingly pursuing individual Americans - and they are fighting back, turning otherwise dry regulatory proceedings into emotional battles over individual liberty, big government and economic freedom.
The US supreme court is considering the cases of two small landowners from Michigan accused of threatening to pollute America's waterways. Both have been denied permission to develop their property on the grounds that they own pieces of wetland, and building on them could harm the environment.
One, John Rapanos, insists that his land is bone dry and 20 miles from the nearest river. The other, Keith Carabell, admits his land is very slightly soggy - but still irrelevant to the cause of clean water. The government says each man owns a piece of the ecosystem; the landowners say it is just a piece of real estate. Powerful voices have lined up on either side, from environmental groups to housebuilders, from state governments to mall developers.
Decades of environmental regulation could be overturned in a case that involves not only clean water but also the powers of federal government to police the behaviour of individuals in areas far beyond the environment.
Mr Carabell stands on the edge of his tree-studded triangle of land, marooned in a suburban wasteland of cheap housing and fast food, and asks what right the federal government has to mess with him.
The government says his 19-acre parcel of land north of Detroit is one of the last remaining wetlands in an area where suburban sprawl has blighted every other inch of the ecosphere.
It is one mile from Lake St Clair, a charming recreational body of water nestled between two of the Great Lakes. They say that his land could drain into a creek that leads to the lake - making it part of the "waters of the United States", which are regulated by the federal government under the clean water act.
Mr Carabell, however, says his land is like "a bathtub without a drain": along one side, there is indeed a drainage ditch, but there is also a berm, or dike, that prevents water from draining from his property into the ditch. His property has "no hydrological connection" to the nearby creek or lake. Mark Richardson, who prosecutes water quality cases for the local municipality, says that would change if Mr Carabell built multi-family housing on the property, as he would like to.
Mr Richardson says the land is "like a sponge": it soaks up water that would otherwise overload neighbouring waterways and exacerbate the county's serious flooding problems.
Mr Carabell's property is small - a few acres of land next to the motorway, round the corner from the strip mall, and scarcely the kind of wonderland environmental battles are usually fought over.
But Mr Richardson says the destruction of wetlands has to stop somewhere - and the federal government must have the authority to decide where. Mr Carabell's allies include property rights activists, libertarians, developers and free enterprise groups.
They say the federal government has expanded its power under the clean water act so much that it is violating the US constitution, which has traditionally given states power over local waterways.
They condemn the government's approach to the law: that "all drains lead to the ocean". That approach would give the federal government power to regulate every drop of water in the nation, says the Washington Legal Foundation, a pro-market think tank. Mr Carabell says the problem is much simpler: the tree huggers are trying to steal his property: "This isn't Russia or Cuba," he says. "If it's so important for public use, let's let the public pay for it."
The court's two new justices - Samuel Alito, and chief justice John Roberts - could cast the deciding votes. They must decide which wetlands are under federal authority, and which can be regulated by the states. Both men normally favour a narrow interpretation of laws, so they could opt for a narrow reading of the clean water act and keep the Michigan properties out of it. Alternatively, they could decide the federal agency that implements the law is best placed to make such decisions.
At the very least, the case could determine federal authority over millions of acres of wetlands. At the most, it will test the balance of power between the federal and state governments in much more fundamental ways. Either way, it could prove a crucial test of the new US supreme court. There is much more than water at stake.
