More on Rapanos/Carabell
on Jun 19, 2006 at 3:41 pm
Kim Diana Connolly has these thoughts on today’s opinion:
My first thought as I read this opinion was as an educator of law students rather than as an environmental lawyer: this is a marvelously rich decision with which to discuss environmental law and policy in this new Supreme Court era. The downside of that conclusion, however, is the reality that it is not as helpful a decision as it might be to any true stakeholders, including the regulated communities, the regulators or the conservation-focused interest groups.
The short story is as follows: the 19 June 2006 U.S. Supreme Court Rapanos decision vacated and remanded both the Rapanos (04–1034) and Carabell (04–1384) decisions to the lower courts for further consideration. The state of the law is now less clear than it was, and action by one or both of the other branches (Congress and/or the agencies) will be needed to move the 404 permit decisionmaking process beyond what is now by necessity a case-by-case exercise. Some may be interested in my website for law students at http://www.law.sc.edu/wetlands/rapanos-carabell/, which includes the original Carabell application and many associated documents through the course of the case.
Justice Scalia’s plurality opinion (joined only by Chief Justice Roberts and Justices Alito and Thomas) would have limited the Federal Water Pollution Control Act (a.k.a the Clean Water Act)’s protection of “waters of the United States†to those bodies of water that are “permanent, standing or continously flowing.†A lengthy and extreme construal of the CWA 404 permitting program accompanies this plurality interpretation, including labeling the U.S. Army Corps of Engineers an “enlightened despot†and concluding that the permitting program is an “immense expansion of federal regulation of land use that has occurred under the Clean Water Act…†Yet only four votes were garnered for this interpretation.
It was Justice Kennedy who provided crucial the fifth vote for remand. Justice Kennedy’s opinion was far less broad in its interpretation, and in fact goes so far as to state that the plurality opinion is “inconsistent with the Act’s text, structure and purpose.†However, Justice Kennedy does throw an interpretative muddle into the 404 permitting program by insisting that the proper approach would be finding a “significant nexus†test to be developed by the regulating agencies. In the meantime, he asks for “case-by-case†review by the Corps when it “seeks to regulate wetlands based on adjacency to nonnavigable tributaries.†Interestingly, the plurality suggests that Justice Kennedy is hoping for an outcome in favor of the agencies in its footnote 15 which says that “… by stating that ‘[i]n both the consolidated cases before the Court the record contains evidence suggesting the possible existence of a significant nexus according to the principles outlined above,’ [citation omitted], JUSTICE KENNEDY tips a wink at the agency, inviting it to try its same expansive reading again.â€
The dissent issued by Justice Stevens and joined by Justices Souter, Ginsburg and Breyer would have upheld the lower court decisions and the associated interpretations of the Congress and agencies (“Our unanimous decision in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985), was faithful to our duty to respect the work product of the Legislative and Executive Branches of our Government. Today’s judicial amendment of the Clean Water Act is not.â€). The dissent expresses appreciation for Parts I and II–A of Justice Kennedy’s opinion, but strongly rejects his importation of a “significant nexus†test into the regulatory system. This concern by the dissent summarizes concerns raised by a number of amici in support of the government’s position. Nevertheless, Justice Kennedy’s opinion may well be the law of the land (“when 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.†Grutter v. Bollinger, 539 U. S. 306, 325 (2003) (discussing Marks v. United States, 430 U. S. 188 (1977), but like other aspects of this case that is not entirely clear.
So where are we? As Chief Justice Roberts says in his concurrence, the fractured court means that “[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.†But what does that mean should happen next? Congress could reaffirm what it originally meant in 1972 and 1977 (as the brief by former Members of Congress stated, “Because wetlands adjacent to traditionally navigable waters, or adjacent to tributaries to those waters, have significant impacts on traditionally navigable waters, Congress intended for them to be subject to regulation under the Clean Water Act.â€) Yet swift action on a significant piece of environmental legislation unfortunately seems unlikely in today’s political climate (but not impossible, especially given the disrespectful tenor of the plurality opinion). The Corps and EPA could swiftly issue a new rule. Yet the lengthy delays associated with issuing guidance on the SWANCC decision and the resulting lack of definitiveness in what was eventually issued makes that similarly unlikely.
This leaves us with the courts adjudicating individual decisions that are brought before them, of course. But perhaps more importantly it leaves regulators making difficult individual decisions. The already overworked regulatory staff is likely to experience more pressure, more burdens, and more difficulties navigating the 404 permitting program. The spike in administrative appeals following SWANCC (see http://www.usace.army.mil/inet/functions/cw/cecwo/reg/appeals.htm) is likely to be repeated. And wetlands that shouldn’t be will likely be filled.
In short, as I said at the outset of this comment, the murkiness left in the wake of the Rapanos Supreme Court decision makes this a great case for educators. But that same murkiness in fact makes it a lousy case for those who have an interest in wetlands – no matter which side they are on.
