Navigating the new court

A LOT OF FOLKS ARE IN A TIZZY about Tuesday’s Supreme Court session. Justice Samuel A. Alito Jr. will hear his first oral arguments. Chief Justice John G. Roberts Jr. will hear his first environmental cases. The Bush administration, hardly known for its enthusiastic enforcement of federal environmental laws, will argue vehemently in favor of one of the most comprehensive environmental laws on the books, the Clean Water Act. Most exciting of all, at least for court junkies, the cases could provide clues about the new justices’ view of the Constitution’s commerce clause, which established the federal government’s power to regulate local matters that at least theoretically affect interstate commerce. Depending on its interpretation, the new court could decide to upend the balance of state and federal power as we know it.

But it probably won’t. As much as some activists may want the court to issue a grand statement about the limits of constitutional power, it’s more likely to focus on the definition of a single, ordinary word.

That word is “navigable.” Two cases -- Rapanos vs. United States and Carabell vs. Army Corps of Engineers -- pose serious challenges to the 1972 Clean Water Act. That law gives the federal government authority to regulate “navigable waters” in the U.S. Over the decades courts have defined that term broadly; in 1985, the Supreme Court said it included wetlands if they were adjacent to navigable waters. Tuesday’s cases concern wetlands that are (or may be) connected, but not adjacent, to navigable bodies. The question, which is more about the law than about the Constitution, is whether the federal government has the authority to regulate these as well.

An eclectic cast of characters says it does: Besides the Bush administration, there are environmental groups, hunting clubs, four former Environmental Protection Agency administrators (two Republicans and two Democrats), a star-studded group of scientists (including Jared Diamond and Edward O. Wilson), nine current and former members of Congress who helped draft the Clean Water Act and 34 states, including California. On the other side are home-building organizations, advocates for limited government, farming and petroleum interests and many Western water authorities, including Southern California’s Metropolitan Water District.

If the court determines that these wetlands are not covered by the Clean Water Act, federal protection could evaporate for almost 60% of the total length of streams in the continental United States. Such a change could affect drinking water for more than 110 million people, according to the EPA. Small bodies of water are almost always hydrologically connected with larger ones. It can be hard to define exactly where dry land officially becomes wetland and where a trickle becomes a stream.

Especially with two new justices on the bench, no one knows which way the court will lean. But breathless anticipation in some quarters aside, it’s unlikely the court will try to use these cases to announce a new framework for federal authority. Thankfully. More likely, and equally consequential, is a thorough parsing of the word “navigable.” Here’s hoping the definition leaves the Clean Water Act intact.