Federal Judiciary

U.S. opposes review of wetlands case

By Akin Gump Supreme Court Practice Group

The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks.  Although the Fifth Circuit Court ruling being challenged in the case, Lucas v. U.S. (07-1512), is one of a series of rulngs contributing to confusion over the meaning of the Clean Water Act, the Justice Department prefers to have that issue decided by the Justices in a newly filed government appeal — U.S. v. McWane, Inc. (08-223).  (That appeal is discussed in this post.)

Acting Solicitor General Gregory G. Garre filed this brief in opposition in the Lucas case.

The Lucas case involves three individuals and two corporations convicted of criminal charges of, among other claims, violating the Clean Water Act by causing pollution of wetlands by installing faulty septic tank systems in a private home development in Mississippi.  The appeal urged the Supreme Court to clarify the wetlands-protection issue, but also to decide whether the CWA applies at all to individual home septic systems.  The appeal argues that those are not “point sources” of pollution under the Act.

The Justice Department said the appeal does not pose directly the conflict among lower courts over the wetlands-protection issue, because the convictions would stand under any interpretation of the Act.  The Department also argued that there is no conflict among lower courts on whether septic tanks are covered by the Act, so that issue is not worthy of review.

Full post as published by SCOTUSBLOG on August 29, 2008 (boomark / email).