We’re pleased to kick off our discussion of Rapanos/Carabell with these thoughts from Richard Lazarus:
Quick comment. The result in this case is far different than it first seemed.
Environmental Law now has its own Bakke. We can hope, however, that it will not similarly take 26 years for the Court to bring some clarity to the law.
While Justice Scalia’s plurality opinion is strikingly sweeping and remarkably disdainful of the policy and purposes of the Clean Water Act, it is only that: a plurality opinion. And, as the Chief Justice pointedly reminds us in his own concurring opinion (he also joins Scalia’s), the lower courts will now have to follow Marks v. United States, which means that Justice Kennedy’s separate concurring opinion is controlling. Under Marks, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ***.†430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1979).
Here that is Kennedy, who rejects the most sweeping and central parts of the plurality opinion and expressly agrees with parts of the dissent: (1) “the dissent is correct to observe that an intermittent flow can constitute a streamâ€; (2) “It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.â€; (3) “the plurality concludes * * * that navigable waters may not be intermittent. The conclusion is unsound.â€; (4) “as the dissent observes, the fact that point sources may carry continuous flow undermines the plurality’s conclusion that covered “waters†may not be discontinuous.†(5) rejects “plurality’s second limitation – exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters.â€
Kennedy’s announced test, which the plurality rejects is nonetheless now the controlling test, just as Powell’s arguably was in Bakke in 1978. Kennedy’s proffered contextual, balancing approach also seems reminiscent of Powell in Bakke in some respects. The Kennedy test for wetlands is:
“[W]etlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.†When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.â€
Kennedy goes on to say that the Corps’ current test for wetlands adjacent to traditional navigable waters is reasonable because of a “reasonable inference of ecological interconnection†that can be drawn. But, according to Kennedy, the Corps needs now to develop through regulations categories of tributaries for which the same can be said for wetlands adjacent to such tributaries. Outlining a blueprint for future Corps regulations, Kennedy goes on to describe the relevant factors to be considered in establishing those categories of tributaries that “perform important functions for an aquatic system incorporating navigable waters.†Kennedy adds that until the Corps establishes specific regulations, it will have to approach these issues on a case by case basis.
Finally, Kennedy adds that the “record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above†and, accordingly, the end result in these cases and many others to be considered may be the same as that suggested by the dissent * * *.
Enormous uncertainty has now been injected into the law, but this case is not the huge loss it first seemed. Kennedy plus the Stevens dissent provides lots of regulatory space for the government and for environmental protection.
One more final speculation based on a conversation with a journalist who covers the Court. Is it possible that Stevens originally assigned the opinion in this case to Kennedy, who performed a Kennedyish change of heart on the bottom line judgment? Or did Scalia have it all along and simply lost Kennedy. If the latter, why did the CJ assign this to Scalia who was bound to do what he does best – write broadly and lose votes – rather than to Kennedy, which could have resulted in a narrowly written opinion for the Court rather than a splintered Bakke mess.
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