According to the Associated Press,
“Justices decided on a 5-4 vote, split along ideological lines, that regulators may have misinterpreted the federal Clean Water Act when they refused to allow two Michigan property owners to build a shopping mall and condos on wetlands they own.This means that the Court, particularly Justice Anthony M. Kennedy (see below), had neither the courage nor understanding to overturn the clear abuses of the Clean Water Act themselves. Instead, they passed the buck to the lower courts to make decisions without any guidelines, which will result in indeterminant and contradictory rulings on the wetlands issue for years to come.
“But on a separate 5-4 vote, they refused to block the government from restricting access on distant wetlands.”
“Instead of ruling in the property owners' favor, as they requested, justices said lower courts must reconsider whether ditches and drains near wetlands are waterways.”
“The court's four most conservative members wanted a more sweeping ruling, clearing the way for development of land unless it was directly connected to waterways.So here, according to the AP account, the liberal members of the Court acted as legal conservatives, i.e., they ruled to conserve precedent when it conveniently fits their ideological biases. To put it a different way, four liberal justices are content to use precedent to uphold the despotic practices of the Army Corps of Engineers (ACE) - on the basis that ACE had been taking the same actions for 30 years – not because the ACE practices are consistant with the Clean Water Act (nor with rationality).
“The court's four most liberal members said that such a ruling would reject three decades of practice by the Army Corps of Engineers and threaten the environment."
“In the middle was Justice Anthony M. Kennedy.Kennedy’s above-quoted opinion captures exactly what is wrong with evironmentalist’s views on “wetlands”. Specifically, environmentalists regard nature or certain areas of nature (anything untouched, or - as they would say - “uncorrupted” by human productive activity) to be valuable to “public interests.” This, they argue, necessitates that the government infringe upon the rights of individual citizens by blocking them from rightful use of their own property.
“Kennedy wrote his own opinion to explain why he was not joining the main opinion. "Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular," he said. Scalia's opinion, Kennedy said, "seems unduly dismissive of the interests asserted by the United States in these cases."
The fallacy here is twofold: 1) there are no public interests above and apart from the interests and rights of individual citizens. For that matter, there is no amorphous entity called “the public” which mystically appears whenever you gather togther people in a group. The concept “the public” is just that – a concept – which designates a collection of individuals.
2) There are no values apart from individuals who do the valuing. Thus, the wetlands in contention in these cases have no value to individuals who want to develop condominiums or apartments on their property. Nor do these wetlands have value to the people that want to purchase or rent from these property owners. Neither do these wetlands have value to most rational people. What nowadays goes by the politically correct name of “wetlands” are in fact what people used to call swamps. These areas used to be regarded as a nuissance, which needed to be dried out and reclaimed, e.g., the cities of Washington, D.C. and Seattle. No one has any rational interest in preventing these particular property owners, or property owners in general, from developing their land. Only those with an irrational interest in preventing human beings from rearranging nature to fit their needs want to use the force of government (particularly, that institution hated so much by the Left – the U.S. Army) to infringe upon the basic most fundamental rights of American citizens to use and dispose of their own property in the pusuit of their own rational self-interests. Environmentalists consider individual rights as a nussaince infringing on their goal of "protecting" nature from mankind.
At least Justice Scalia understood part of the unjustice on the part of the environmentalists:
“Scalia had said the Corps of Engineers misinterpreted the term "waters of the United States."Unfortunately, it is not a parody to those individuals whose rights are trampled. Nor is it a parody to every other American whose freedom is jeapordized by the arbitrary power of government bureacracy.
"In applying the definition to `ephemeral streams,' `wet meadows,' storm sewers and culverts, ... man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term `waters of the United States' beyond parody," he wrote.”