Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson
By
Harrison J. Fears
on July 9, 2013 2:01 PM
The Supreme Court hears a lively debate on protecting wetlands and fish streams, but it is led in part by Justice John Paul Stevens. Stevens, who wrote the majority opinion striking down a South Dakota law in 1987 — allowing counties and cities to allow residential development on the edge of their wetlands — is again on the Court’s high court.
On the Court, Stevens was joined by Elena Kagan, who helped write the law that Stevens struck down as violating the National Environmental Policy Act of 1969. The law allows the Environmental Protection Agency to set guidelines for how an agency may consider how its activities may affect a “comprehensive multiple-use” area. The law, which the Supreme Court struck down, was intended to protect endangered species and historic monuments.
“The issue is a classic example of the power of law to change a community,” Stevens said in a recent interview with The Times. “It is a very old question. It’s an old question in the state of South Dakota.”
South Dakota was the first state to allow residential development on the edge of its wetlands. The law passed during a time when wetlands still were protected, the historian John V. Smith wrote in 2010 in a review of the case law.
“It was not a controversial idea. But it was controversial because of the way the law was written, and that’s where Stevens and the other four Democrats on the Court came in with their opinion.”
Before the issue, Stevens says, “the legal environment to protect wetlands was very restrictive — that there had to be actual loss of wetlands and there was limited opportunity to apply for wetlands permits.”
The law would allow any city or county to decide whether to allow residential development by determining if the area was a “comprehensive multiple use” area, defined by the Supreme Court as including forests, wetlands, streams, wildlife refuges, recreational areas and wetlands used “for water supply, water supply and sanitation, energy production, flood control, land preservation and recreational use.”
Stevens says he and his colleagues chose to define the term “comprehensive” as excluding all the rest of the state, as