Navigating Wetlands to the Supreme Court

(Note: The following is an edited version of a piece that was originally published in the Fall 2005 issue of Impact, the newsletter of the Mackinac Center for Public Policy.)

When the U.S. Supreme Court announced on Oct. 11 that it would hear two Michigan cases involving federal regulation of wetlands, the Mackinac Center burst into action.

The Center was well-positioned to influence the debate on the cases, Rapanos v. United States and Carabell v. Army Corps of Engineers, which involve challenges by Michigan citizens to the federal government’s authority to regulate alleged wetlands on their property. Senior Environmental Policy Analyst Russ Harding had already visited one of the properties in question, and his skepticism about the government’s case had already prompted media attention for the plight of developer John Rapanos, including coverage in The Wall Street Journal, The Detroit News and The Washington Times.

Following the court’s announcement, Harding and Patrick J. Wright, the Center’s senior legal analyst, issued a news release that observed, "The federal government’s claim of jurisdiction on grounds that water from an otherwise isolated water source might somehow still reach a navigable water is ... too expansive. It gives the federal government almost unlimited jurisdiction," which the Founding Fathers "did not intend."

Their comments were picked up by the Associated Press and Booth newspapers, and Harding received numerous calls from reporters outside Michigan. On Oct. 17, Harding and Wright were interviewed by Flint’s Fox 66 TV News Central, and their subsequent Op-Ed on the cases was published in the Oct. 26 Detroit News.

Harding and Wright continue to follow this issue closely and plan to attend the Feb. 21 Supreme Court session when oral arguments are heard on these cases. In early December, Wright submitted an amicus brief to the Supreme Court analyzing the regulatory overreach of Congress and the Army Corps of Engineers in these cases. Harding and Wright are also developing an outreach campaign to national media, so that they can underscore the dangers to American freedom and democracy of unbridled federal power and of delegating key policy decisions to unelected bureaucrats. The Center’s explosive start on these Supreme Court cases has thus laid the groundwork for a long-term educational campaign.

Permission to reprint in whole or in part is hereby granted, provided that the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich., is properly cited.