Supreme Court to take on issue of property rights vs. environment

WASHINGTON -- The Supreme Court set the stage yesterday for what could be a landmark ruling on government authority to regulate wetlands and control pollution, giving Chief Justice John G. Roberts Jr. his first chance to limit federal regulation of property rights.

The justices agreed to take up assertions that regulators have gone too far by restricting development of property that is miles away from any river or waterway.

With more than 100 million acres of wetlands in the United States, a total as large as California, the stakes are high, the justices were told.

The outcome could have implications for government authority in regulating construction in obviously environmentally sensitive areas, such as parts of Louisiana and Mississippi decimated by Hurricane Katrina, as well as land that is not adjacent to water.

The Army Corps of Engineers regulates work on wetlands, which are home to many plants and animals.

''They define wetlands so broadly that even dry desert areas of Arizona are being called wetlands," said Paul Kamenar, a lawyer with the Washington Legal Foundation, one of the conservative groups that called on the court to intervene.

The Bush administration had urged the court to stay on the sidelines.

The Government Accountability Office reported yesterday that the corps generally declines to regulate small, isolated wetlands within a single state, based on the administration's interpretation of a 2001 Supreme Court ruling. The corps also fails to document a reason for its decisions up to half the time, said the GAO.

''The corps is not following the law, and drinking water supplies, wildlife habitat, and flood protection could be lost as a result," said Nancy Stoner, director of the Natural Resources Defense Council's clean water project.

Environmental cases have been divisive at the court. In 2002, justices deadlocked 4 to 4 in a case that asked whether farmers should have more freedom to work in wetlands. In 2001, the court split 5 to 4 in a ruling that limited the scope of government protection of wetlands, but the decision did not go as far as environmentalists feared.

Environmentalists have been worried about how Roberts will vote in such cases. As an appeals court judge, he suggested in 2003 that federal power is limited. He had urged the appeals court to reconsider its decision restricting a construction project in the San Diego area because it encroached on the habitat of the rare arroyo southwestern toad.

The 1972 Clean Water Act involved in the Supreme Court cases draws much of its regulatory authority from the part of the Constitution that gives Congress power to regulate commerce between the states. The same legal reasoning underpins federal environmental and civil rights protections, so the outcome of these cases could affect more than land regulations. Their outcome could also rest with the replacement for retiring Justice Sandra Day O'Connor. Arguments in the cases will be scheduled next year.