Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson
Updated 8:28 am, Friday, February 8, 2018
Cities and counties across the South Carolinian, especially in coastal and riverine areas, have been using wetlands for centuries to meet their needs. The nation’s wetlands are important ecologically and biologically.
But today, the U.S. Supreme Court heard a lively debate on how the federal government can protect wetlands from development and development-related activities.
The most contentious case centered on how the federal government gets its authority to regulate land use in protected wetlands. In this case, the justices will decide whether to extend the federal government’s existing authority under the Clean Water Act to protect wetlands from development.
The case was brought by the City of Charleston and the state of South Carolina in their federal lawsuit against South Carolina’s governor and legislative leaders, who sought to overturn an order by the South Carolina Department of Natural Resources that declared that Charleston and the surrounding area’s wetlands were non-navigable, meaning they could not be submerged by a body of water.
In a 7-2 ruling Tuesday, justices were divided on whether the federal government had the authority to protect wetlands from development. Justice Samuel Alito, the lone holdout, held the federal government lacks this authority, but it will likely be up to the Supreme Court to decide the question.
“It’s time to move past the jurisdictional issue and address the merits,” he said.
A three-judge panel heard the case in Charleston. The case was the first the federal government brought against South Carolina in the more than 70 years it has had jurisdiction over its own wetlands.
South Carolina filed its own lawsuit against the federal government, and in 2013 agreed to stay an order that had declared its wetlands were non-navigable.
In a concurring opinion written for the majority by Justice Elena Kagan, she argued that this case is one that could decide whether the federal government can protect its own wetlands when the state declares them non-navigable.
“In holding that federal courts lack the authority to hear the merits of a