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E-M:/ Account of the Rapanos & Carabell Supreme Court case Oral Argument

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

Macomb County Prosecutor's Office environmental attorney, Mark Richardson, 
reports on the U.S. Supreme Court oral argument on the Rapanos / Carabell
oral argument on the case concerning the jurisdiction of the Clean Water Act
to cover tributaries of navigable waters of the United States.  Attorney 
Richardson is Chief of the Water Quality Unit in the Prosecutor's office.



Date: Tue, 28 Feb 2006 13:42:51 -0500
From: "Mark Richardson" <Mark.Richardson@macombcountymi.gov>
Subject: Supreme Court
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As some of you know, I filed an amicus brief in the United States Supreme Court on behalf of Macomb County in the Carabell wetlands case.  Here is a recap of my trip to the Supreme Court on February 21 for oral arguments in the Rapanos and Carabell cases.

I arrived at the Court just after 6 AM.  There was already a line stretching around the block from the public entrance on the south side of the building to about the middle of the front steps.  I heard later that some people had arrived as early as 9 PM the previous evening and had camped out in line overnight.

As a new member of the Supreme Court Bar Association I was able to join another line for attorneys only at the north side of the building.  Even at that hour there were already attorneys in line ahead of me.  Eventually the attorney line grew to about 200 people by my estimate.

Some of you might be wondering why these cases stirred up so much interest.  Well, the basic issue in these cases is whether the federal government has the authority to regulate approximately 80% of the nation's wetlands and non-navigable tributaries of navigable waters.  In environmental matters, the stakes rarely get much higher than that.  These are probably the most important environmental cases the Court has heard in 20 years.

They started letting us into the Court about 9:30.  The US Supreme Court hears cases in a room that resembles the interior of a Roman temple.  Of course this is not surprising as the whole building is intended to represent a temple of the law.  Four massive stone pillars extend from the floor to the ceiling in the front and rear of the room.  The side walls each have a double row of four pillars.  A massive red curtain, fringed in gold trim, hangs behind the pillars on each of the four walls.  There is an anteroom behind the pillars and the curtains on each side, with large windows.  On each wall, near the ceiling and a good 40 feet from the floor, are carved figures of the lawgivers, the mythic, semi-mythic, and historical personalities that created our legal heritage, such as Hammerabi, Moses, and William the Conqueror.  The 10 commandments are up there as well.  (Don't tell the ACLU.)  

I was given an excellent seat near Justice Alito.  At the beginning of the session I noticed him gazing around a little bit.  Of course!  It was his first day on the bench and he was seeing the courtroom from that vantage point for the very first time.  Was that just a trace of awe flickering across his features?

The entire proceedings were conducted with a great deal of dignity and decorum.  Court staff and the solicitor general (representing the US government) wore morning coats, which are a type of frock coat with tails.  I was a bit surprised, too, by the tone of the arguments.  I had long been under the impression that oral arguments in the Supreme Court were a little like Guantanamo Bay interrogations, with the attorneys being barely able to get the words out of their mouths before being cut to shreds by rapier-like comments from the bench.  It really wasn't like that at all.  The questions were tough but respectful, and the attorneys were given fair opportunities to answer.
Justices Scalia and Roberts asked most of the questions.  Justice Alito asked only one question; Justice Breyer only a couple; Justice Thomas none.  Some questions focused on the underlying purposes of the clean water act (pollution prevention) but most seemed to focus on the question of how and where to draw the line between state and federal jurisdiction over waterways, including wetlands.  From the tenor of the questions it seems apparent that Stevens, Souter, Ginsberg, and Breyer will vote to sustain federal jurisdiction.  Justice Scalia will obviously vote the other way.  (Much mock amazement from him that the clean water act might be construed to regulate "puddles" or "the kitchen sink."  Well the Carabell wetland is no puddle.  Its a 20 acre wooded tract, just about the last forested wetland of its type in the county.)  On the basis of their reputations (only) one could predict that Justices Thomas, Roberts, and Alito will vote with Scalia.  That leaves Justice Kennedy.  I am cautiously optimistic he will vote with Breyer et al but I can't really tell from his questioning.  So, for what its worth, I'll predict a 5-4 vote, with Kennedy being the swing vote, but I'm not sure which way he will go so I venture no prediction on the final outcome.

After the arguments were over the press and parties convened on the steps outside the building.  The petitioners and their allies, including the big right wing foundations, think tanks, homebuilders, shopping center developers etc were well prepared with elaborate press kits, PR types fanning out to spread the message, and so forth.  The pro-environmental groups seemed to be nowhere around.  It drove home the point that, for organized opponents of federal regulation, cases like these are just one more event in a long-term strategy to win their battles not only in court, but in the press, the legislatures, and the court of public opinion.  The environmental "community" on the other hand, seems like the little dutch boy going from one hole to another, with no real strategy other than to keep holding on.

I had a little time to kill before heading to the airport, so I decided to visit the WW II memorial, the Vietnam memorial and finally the Lincoln memorial, all of which are located in the same general area.  I love the public part of Washington, because it is like a tonic restoring my faith in democracy.  (My little bit of experience with the non-public "K Street" or "Gucci gulch" part of Washington had just the opposite effect on me, but that's another story.)  

As I was emerging from the Lincoln Memorial, I heard a woman tell her son (about 10) "Here is where Martin Luther King gave his 'I have a dream' speech, and there were people out there as far as the eye could see."  

To me, that was as much worth hearing as the entire Supreme Court argument. 

Take care everybody.  Mark

Alex J. Sagady & Associates        http://www.sagady.com

Environmental Enforcement, Permit/Technical Review, Public Policy, 
Evidence Review and Litigation Investigation on Air, Water and 
Waste/Community Environmental and Resource Protection
Prospectus at:  http://www.sagady.com/sagady.pdf 

657 Spartan Ave,  East Lansing, MI  48823  
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com

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