Last week, the US Supreme Court held oral argument on a wetlands case from Minnesota. Under the federal Clean Water Act, the US Army Corps of Engineers has jurisdiction to enforce the prohibition on "dredging and filling" "waters of the United States," which is the primary federal protection for wetlands. The issue in the case was technical--whether the Corps's "jurisdictional determinations" or "JDs," where the agency determines whether the wetlands at issue are indeed "waters of the United States" entitled to federal protection, are immediately reviewable in court or whether applicants need to wait for formal permits to be issued or denied.
At least one report indicated that the government may be likely to lose, but perhaps on very narrow grounds. If it were decided more broadly, it could tie federal environmental agencies like EPA in procedural knots. One scary part of the oral argument was Justice Kennedy openly speculating whether the Clean Water Act is unconstitutionally vague. That argument has rarely if ever prevailed in the lower courts, but the Supreme Court has never formally taken up that issue. Kennedy's comment reflects, in my view, the general antipathy the conservative bloc has for the Clean Water Act, especially on wetlands, which is stronger than their hostility toward other environmental statutes.