By 5 to 4, the justices overturned lower court judgments against the Michigan land owners, who had run afoul of the Clean Water Act over their plans to build a shopping mall and condominiums.
The ruling was not the resounding, unambiguous triumph that the land owners, John A. Rapanos and June Carabell, may have hoped for. Instead, five justices found that regulators may have gone too far in trying to thwart their plans, and it returned the case to lower courts for further deliberation. One of the five justices, Anthony M. Kennedy, even suggested in a separate opinion that the property owners might lose once again in the lower courts.
Whatever happens in the cases of Mr. Rapanos and Ms. Carabell, the splintered outcome at the Supreme Court not only guaranteed more litigation in the lower courts, it also may prompt more debate in Congress, should the lawmakers feel obliged to refine the language of the Clean Water Act to minimize future confusion.
Chief Justice John G. Roberts Jr. expressed disappointment that the court had not reached agreement on the limits that Congress had placed on the reach of the Clean Water Act, and he predicted much litigation ahead. “Lower courts and regulated entities will now have to feel their way on a case-by-case basis,” he wrote.Justice Antonin Scalia announced the judgment of the court, and wrote an opinion joined by Chief Justice Roberts and Justices Clarence Thomas and Samuel A. Alito Jr. Justice Kennedy wrote an opinion concurring in the overall judgment but not with all aspects of Justice Scalia’s finding.
The tone of Justice Scalia’s opinion suggested that he would like to see far less regulation by the Army Corps of Engineers over the millions of acres of wetlands in the United States, much of it on private land. He wrote that the Corps, in asserting power over “man-made drainage ditches, and dry arroyos in the middle of the desert,” had gone “beyond parody.”