|WASHINGTON, Dec. 16 — A 4-to-4 tie at the Supreme Court today resulted in a victory, although quite likely only a temporary one, for federal regulators and environmental groups seeking to preserve the Clean Water Act as a tool against an increasingly common method of filling wetlands. |
The case was an appeal by a California developer who used a plowing method known as deep ripping to turn wetlands on his property from grazing land to development parcels suitable for sale as vineyards and orchards. Soil preparation for grape vines and fruit trees, which have deep roots, requires piercing the underlying layer of clay that enables wetlands to retain water.
The developer, Angelo K. Tsakopoulos, did not obtain the permit that the Environmental Protection Agency and the United States Army Corps of Engineers said was required. He argued that deep ripping, which uses a bulldozer to pull a seven-foot metal shank, does not require a Clean Water Act permit because while it moves soil from place to place, it does not result in the "discharge" of "pollutants," central terms in the law that this case held the promise of defining.
The federal appeals court in San Francisco ruled that the Clean Water Act did apply to deep ripping, upholding a $500,000 fine and an order to restore four acres of former wetlands that Mr. Tsakopoulos had plowed for his project.
Justice Anthony M. Kennedy, a longtime acquaintance of Mr. Tsakopoulos, did not participate in the court's decision last June to hear the appeal and did not attend the argument last Tuesday. Under the court's rules, a tie vote affirms the lower court's decision in the particular case, but is not binding as a precedent for other cases. In effect, it is as if the case was never brought to the Supreme Court in the first place.
The court does not identify the justices on either side of a tie. Presumably, the positions were so entrenched when the justices took a straw vote at their closed-door conference after the argument last week that there was no point in further discussion.
Timothy S. Bishop, the lawyer who argued the case for Mr. Tsakopoulos and his Borden Ranch Partnership, said today that "we'll all be looking for a case to get up there and see if we can get five justices together." By "we," Mr. Bishop said, he meant "the regulated community" of developers, home builders, the forestry industry, farmers, and other commercial interests opposed to the government's view of the Clean Water Act's regulatory reach.
"There is nothing that happens on the land that doesn't implicate" the questions raised by the case, Mr. Bishop said.
Environmental advocates said they had dodged a bullet, at least for now, in a case they considered highly significant. Timothy D. Searchinger, senior lawyer for the conservation group Environmental Defense, said it was disturbing that the court had agreed to hear the appeal, considering that not only the United States Court of Appeals for the Ninth Circuit but also five other federal appeals courts had previously agreed with the government that the Clean Water Act applied to deep ripping.
"You only need one loophole" to destroy wetlands, Mr. Searchinger said.
Howard Fox, a lawyer for Earthjustice, an environmental legal group, said that while the attack by industry on the Clean Water Act was "for the time being, deflected," other regulatory and legal battles over the scope of the law were imminent. The case was Borden Ranch Partnership v. United States Army Corps of Engineers, No. 01-