William Rehnquist on Environment

Supreme Court Justice (nominated by Pres. Nixon 1972)


Migratory birds don't extend CWA to isolated waters.

Justice Rehnquist wrote the Court's decision on SWANCC v. Army Corps of Engineers on Jan 9, 2001:

Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers interpreted a provision of the Clean Water Act (CWA) which requires permits for the discharge of dredged or fill materials into "navigable waters." This provision was the basis for the federal wetlands permitting program.

HELD: By Rehnquist, joined by O'Connor, Scalia, Kennedy, and Thomas

Justices rule, 5–4, that law does not authorize federal government to regulate dredging and filling of isolated ponds and wetlands. The Court held that the Corps of Engineers' use of the long controversial "migratory bird rule," adopted by the EPA to interpret the reach of their authority over "isolated waters" (including isolated wetlands), exceeded the authority granted by that section. Long before the SWANCC case, there had been controversy and litigation over whether isolated waters that are not adjacent to true navigable waters are properly within EPA jurisdiction. The "migratory bird rule" extends the CWA to intrastate waters that provide habitat for migratory birds, despite being isolated from navigable waters.

The decision may affect up to 79% of wetland acreage. States may act to fill in the gap left by removal of some federal jurisdiction through new laws or programs.

DISSENT: By Stevens, joined by Souter, Ginsburg, and Breyer

The dissent stated that the CWA went beyond navigable waters, to embrace marshes and adjacent inland lakes would extend the CWA indefinitely. The 1972 CWA offered no support for such a constraint, and the 1977 CWA amendment supports coverage of isolated waters. Moreover, the dissent declares, there is no Commerce Clause problem, since the discharge of dredged and fill materials into "waters of the United States" constitutes an economic activity that may be aggregated to show a substantial effect on interstate commerce.
Source: Supreme Court case 01-SWANCC argued on Oct 31, 2000

Eminent domain should not take from poor to give to rich.

Justice Rehnquist joined the dissent on Kelo v. City of New London on Jun 23, 2005:

In one of the most controversial cases of the session, the Court rules, 5-4, in Kelo v. City of New London, that a government can take possession of private property against the owner's will and transfer it to private developers when the result will promote economic development.

HELD: Delivered by Stevens, joined by Kennedy, Souter, Ginsburg, Breyer

The Fifth Amendment allows the government to take private property for public use. The majority opinion says "public use" also means "public purpose." "Promoting economic development is a traditional and long accepted function of government," Stevens writes. "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."

CONCURRENCE: Concurrence by Kennedy

The concurring opinion sets out a program of civil discovery in the context of a challenge to an assertion of government purpose. However, Kennedy does not explicitly limit these criteria to eminent domain, suggesting that they may be generalized to all health and welfare regulation.

DISSENT: Dissent by O'Connor, joined by Rehnquist, Scalia, Thomas

The dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion--take from the poor, give to the rich-- would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property--and thereby [expands] the Takings Clause of the Fifth Amendment."
Source: Supreme Court case 05-KELO argued on Feb 22, 2005

OK to sue polluters for past pollution.

Justice Rehnquist joined the Court's decision on FRIENDS OF THE EARTH v. LAIDLAW on Jan 12, 2000:

Laidlaw Environmental Services bought a wastewater treatment plant and was granted a Pollutant Discharge Permit by the South Carolina Department of Health and Environmental Control (DHEC). Laidlaw began to discharge various pollutants into the waterway, repeatedly in excess of the limits set by the permit. In April 1992, Friends of the Earth (FOE) sued; the DHEC and Laidlaw reached a settlement requiring Laidlaw to pay $100,000 in civil penalties and to make “every effort” to comply with its permit obligations.

In June 1992, FOE filed this citizen suit against Laidlaw, alleging noncompliance with the permit and seeking further penalties. A judge found in 1997 that Laidlaw had gained a total economic benefit of $1,092,581 as a result of 13 permit violations between 1992 and 1997; and awarded a civil penalty of $405,800. Laidlaw [appealed on the grounds that] the entire facility has since been permanently closed, and all discharges from the facility have permanently ceased, [and the Fourth Circuit dismissed the case as moot].


(Ginsburg, joined by Rehnquist, Stevens, O’Connor, Kennedy, Souter, and Breyer(
The Fourth Circuit erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant has come into compliance with its Pollution Discharge permit.


(Scalia, joined by Thomas)
The Supreme Court uncritically accepting vague claims of injury [where] the District Court found that Laidlaw’s discharges caused no demonstrable harm to the environment. It then proceeds to marry private wrong with public remedy in a union that violates traditional principles of federal standing--thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.
Source: Supreme Court case 98-822 argued on Oct 12, 1999

Limit CWA restrictions to navigable waterways.

Justice Rehnquist wrote the Court's decision on SOLID WASTE AGENCY OF COOK COUNTY v. ARMY CORPS OF ENGINEERS on Jan 9, 2001:

A consortium of suburban Chicago municipalities (Cook County) selected as a solid waste disposal site an abandoned sand and gravel pit. They asked the Army Corps of Engineers (Corps) to determine if a landfill permit was required under the Clean Water Act (CWA). The Corps cited the “Migratory Bird Rule,” which extended its jurisdiction to intrastate waters that provide habitat for migratory birds, and refused to issue a permit.


(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying the Migratory Bird Rule exceeds the authority granted to the Corps under the CWA. The Corps would have jurisdiction over wetlands adjacent to a navigable waterway, but these wetlands are not adjacent to open water.


(Stevens, joined by Souter, Ginsburg, & Breyer)
In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress responded to that dramatic event by enacting the Clean Water Act. The Act proclaimed the ambitious goal of ending water pollution by 1985. The Court’s past interpretations of the CWA have been fully consistent with that goal. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.

In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.

Congress does support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. I respectfully dissent.

Source: Supreme Court case 99-1178 argued on Oct 31, 2000

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Other Justices on Environment: William Rehnquist on other issues:
Samuel Alito(since 2006)
Stephen Breyer(since 1994)
Ruth Bader Ginsburg(since 1993)
Elena Kagan(since 2010)
Anthony Kennedy(since 1988)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Feb 02, 2020