Kennedy ensures that the Clean Water Act will mean a lot of work for lawyers

So much for judges trying to establish clean clear rules. If both sides on the Supreme Court's decision on the Clean Water Act agree on anything, it is that there will be a lot more litigation. The Pacific Legal Foundation at least did win the case that was before the court (though Jonathan Adler warns that this victory might be very short-lived.). From the Washington Post:

In yesterday's ruling, a five-justice majority agreed that the Army Corps of Engineers, the lead federal agency on wetlands regulation, exceeded its authority when it denied two Michigan developers permits to build on wetlands. The court said the Corps had gone beyond the Clean Water Act by making landowners obtain permits to dump rocks and dirt not only in marshes directly next to lakes and rivers but also in areas linked to larger bodies of water only through a network of ditches and drains.

But there was no clear majority as to where the Corps should have drawn the line, with a four-justice plurality made up of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. arguing for an across-the-board reduction in the Corps' regulatory role but Kennedy rejecting that view and calling for a case-by-case approach.

The net effect of the most important Clean Water Act case to reach the court in recent years was thus neither the outright rollback of federal wetlands regulation that property rights advocates have long sought nor the reaffirmation of the Clean Water Act that environmental organizations had desired.