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The Supreme Court's 2005-06 Term
Rapanos v. United States (4-4-1 Decision): The Supreme Court’s five conservative justices vacated the rulings against the petitioners, but Justice Scalia’s opinion represented a plurality rather than a majority, as Justice Kennedy wrote a concurrence proposing a slightly broader interpretation of “navigable waters” under the Clean Water Act. The plurality opinion stated that the federal government’s jurisdiction over the nation’s waterways should be narrowly construed, suggesting that waterways entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be “navigable waters” covered by the Clean Water Act—even though pollution from those waterways can make its way into sources of drinking water for about 117 million Americans. Despite the Court’s failure to issue a clear standard, the Rapanos decision has had a significant impact on environmental protection efforts. As a result of this decision and In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001), more than 1,500 major pollution investigations were discontinued or put on hold, and EPA regulators say they are unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or proving jurisdiction would be extremely difficult or time consuming. And, while the number of facilities violating the Clean Water Act has steadily increased each of the last few years, EPA actions against major polluters have fallen by almost half since the Supreme Court rulings.