Today was a pivotal day for the most ostentatiously named government body, the Supreme Court. It was the first environmental case to be heard by Bush’s two new appointees, testing the waters (heh) for future enviro issues. The case involved a Michigan developer (whose blandly paranoid libertarian rant to the press was so sickeningly typical I wanted to stop my car and pull the radio out with my teeth).

Clean water seems like a no-brainer. But the question is when a body of water is considered independent, and therefore justifiably poisoned. Some damn water-huggers insist that anything, even a “ditch” (Judge Scalia’s choice of words) should be protected if it, say, runs off into a major body of water that provides drinking water for a population. Roberts, following through on his promise to make toads homeless, argued with Scalia that there has to be a limit to federal control. Souter, on the other side, pointed out that all a company could do is simply move upstream and pollute there. But what of Alito, the wily newcomer? Nary a sound - he sat in the corner of the saloon, sipping straight whiskey and keeping his leather hat tilted down, his face cloaked in shadow. Closed-door discussions will lead to a decision that will be made public in a few months.

The point to remember is this: the court is not debating whether a polluting factory can build on a waterway, tributary, or “ditch” – they’re debating whether the federal government can regulate it. And how many permits has this oppressive, power-mad regulatory body granted to developers since it was formed? Answer: 97%.

Court Hears Water Act Arguments (NRDC)

Roberts, Scalia See Limits to the Reach of Clean Water Act (LA Times)