Reed Hopper has these thoughts on Monday’s decision:
Although Mr. Rapanos did not get what he hoped–that is, a clear demarcation of federal authority under the Clean Water Act–he did get what he asked; a majority rejection of what Chief Justice Roberts called the agency’s “boundless view of the scope of its power.†That was a significant victory for Mr. Rapanos personally and the rule-of-law generally. It is probably fair to say that no one got what was wanted in this case, except perhaps Justice Kennedy.
As for Justice Kennedy, I think his opinion is more nuanced than appears from a first reading. While he suggests a broad interpretation of his undefined “significant nexus†standard and even cites some indicia that the Rapanos property could meet this standard, he also sets forth a limiting example of what he calls the “potential overbreadth of the Corps’ regulations.†Specifically, he states the Corps’ existing standard for tributaries is unacceptable because it “seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water-volumes towards it.†This, of course, is a description of the Rapanos property.
But what I really find interesting about Justice Kennedy’s opinion is his apparent unconcern for any Commerce Clause limits. This can be explained, I think, by his slight of hand in the case. Under Lopez and Morrison, the court begins its Commerce Clause analysis with a look at the text of the challenged provision. If the statute as a whole does not involve a market scheme and the challenged provision, by its terms, has nothing to do with economic activity, then the provision will be invalidated. Unless, the statute contains a “jurisdictional statement†that assures on “a case-by-case basis†that the act only applies to those activities which have a substantial affect on interstate commerce. Although the Clean Water Act contains no “jurisdictional statement,†Justice Kennedy slyly supplies one. Hence, “the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries .†“This interpretation of the Act,†he adds, “does not raise federalism or Commerce Clause concerns.†It is doubtful the court can rehabilitate a statute in this way, but it appears Justice Kennedy gave it a go.
Another aspect of the case I find interesting is the plurality’s shift with respect to SWANCC. Whereas in SWANCC the court boldly declared that the term “navigable waters†must be read as written, that the agency properly defined the term in 1974 as traditional navigable waters, and that 404(g)’s reference to other waters was ambiguous and irrelevant to the scope of 404(a), section 404(g) suddenly became a factor and lead, in part, to the conclusion that the term “navigable waters†now includes certain nonnavigable rivers and streams. I suspect that Justice Scalia was comfortable with the more limited view of the Act expressed in SWANCC, but that Justices Alito and Roberts were not. Therefore, Justice Scalia’s opinion was probably not what he would have written had he had a free hand.
As a final point of interest, I think there is enough ambiguity in the decision to allow a lower court the leeway to follow any one of the three views expressed in the decision with very little chance of being overturned by the Supreme Court. Although Justice Kennedy’s opinion may have a technical advantage as the sole concurring opinion, it is unlikely that his view will prevail in all the courts below. We may still see a split among the circuits.
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