Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson
By Susan Taylor
27 May 2013
The Supreme Court heard the first of several days of oral argument regarding the role of the federal government in protecting wetlands from human development late Monday.
This is the second time the court has decided whether or not water is part of the United States—a legal threshold dispute that divides the left and the right in the country. The plaintiffs in the case before the court did not contest the claim that wetlands are a part of the United States. Instead, they challenged the federal government’s ability to impose certain restrictions on wetlands that it deemed to be a safety hazard—such as reducing the flow of water from a wetland to a surface water. The suit challenged a series of provisions under the Clean Water Act (CWA), the 1902 statute that requires the federal government to regulate waterways under strict safety standards. The plaintiffs argued that these regulations violated the Fourth and Fifth Amendments by imposing a “prior restraint” on the exercise of their free speech rights.
This past June, the Supreme Court issued two landmark decisions regarding the rights of citizens to be free from unreasonable government restrictions on their speech. The majority opinion in Citizens United (2010) is clearly a victory for the government as it overturns the longstanding precedent of Citizens United v. FEC, which struck down a regulation requiring that publicly traded corporations disclose all their contributions to political campaigns. In the most striking decision, the court held that the First Amendment does not protect the free speech rights of citizens from “prior restraints” by the government. The government cannot punish political speech simply for being, as Justice Antonin Scalia noted in dissent, “the latest form of speech, for its popularity, for its success.”
The question presented by the case was a question of first impression: whether CWA regulations that limit the amount of water that flows from wetland to surface water violate the First Amendment rights