More on Rapanos/Carabell

By Kevin Russell
on Jun 19, 2006 at 1:54 pm

William Buzbee has these thoughts on the Court’s opinion today:

I think some of the initial posts about today’s ruling in Rapanos are inaccurate. First and most importantly, this case resulted in a 4-1-4 split, with a plurality opinion of four Justices (Scalia, Roberts, Thomas and Alito), a Kennedy concurrence in the judgment and his own opinion strongly rejecting the Scalia plurality approach, a brief concurring opinion by CJ Roberts acknowledging that there is no Court opinion, but stating that in this situation Kennedy’s opinion is key (via a cite to the Marks case), and then the four Justice dissent (Stevens, Souter, Ginsburg, Breyer).

The Scalia plurality is remarkable in the revolution it would achieve, but does not command a Supreme Court majority. The plurality would toss aside over 30 years of consistent regulatory treatment by both Republican and Democratic administrations, would reject the Army Corp’s approach in its regulations and as applied here, and would question the limit of federal power under the Commerce Clause and due to its view that this battle over “waters of the United States” unduly tramples on state and local land use authority. Most significantly, the approach that it generates, based mainly on its own views of policy and parsing of a 1954 dictionary, would preclude federal protections of “waters” that are intermittent or ephemeral, and not permanent, standing or continuously flowing. This remarkable view would, under the plurality’s explicit view, strike down most of the longstanding Army Corps regulations. In its environmental effect, it would render much of the dry western states no longer protected by federal law and regulations because the stream and river beds are often dry, and would also likely eliminate protections for headwaters and many canals even in water-rich Eastern and Midwestern states.

But this is not a majority view. Justice Kennedy plus the four dissenter reject the plurality view, differing primarily in their degree of disagreement and whether anything needs to be remanded for reconsideration. Justice Kennedy rejects just about everything in the plurality opinion. Instead, he calls for a remand for reconsideration of his expanded articulation of what he calls a “significant nexus” test, language he and the Appellants stressed from language in the SWANCC case. While I don’t agree that any such test has existed, at least in the sense of requiring case-by-case proof of a strong connection, his formulation of the test shares a fair bit of ground with the dissenters, the regulators below, and longstanding Army Corps and EPA views of how and why waters are protected.

Under his view, to be addressed on remand, the Corps can for now on a case- by- case basis look at the permit application to see if federal jurisdiction exists. He explicitly calls for deference to the Corps, says that “waters” protected are more than just waters that are navigable, and rejects the plurality claim that only permanent, standing or flowing waters are federally protected. He explicitly notes that in the West rivers can stand dry for much of the year, then flow in thundering torrents. He also says wetlands need not have a “continuous surface connection” because they can still have “significant effects” on waters quality and the ecosystem. He here is building on the Riverside Bayview Homes precedent.

He couldn’t be clearer in his rejection of the plurality opinion when he states that “In sum, the plurality’s opinion is inconsistent with the Act’s text, structure and purpose.”
What he ultimately calls for is a remand in these cases to apply this more fully articulated version of what he calls the “significant nexus” text. Looking longer term at future permitting decisions, he says the Army Corps could promulgate more “specific regulations,” but in the interim must establish a significant nexus on a case-by-case basis when it “seeks to regulate wetlands based on adjacency to nonnavigable tributaries.” He calls for this because of what he calls “overbreadth” of the Corps regulations. In assessing such a significant nexus, he says the Corps can take into account the status of other comparable wetlands in the region.

The dissenters also reject completely the plurality approach and would uphold the lower court and regulatory approaches utilized for about the past 30 years. They emphasize deference to what they see as a quintessential reasonable executive judgments deserving of deference by the courts. They especially emphasize the 1985 Riverside Bayview Homes decision as what should have been the key precedent adhered to in Rapanos. Notably, although they wouldn’t remand here, they approvingly quote Kennedy in key portions of the dissent. Although they wouldn’t add the “significant nexus” test to longstanding regulatory approaches, they also concede that the test as articulated by Kennedy “will probably not do much to diminish the number of wetlands” protected “in the long run.”

This all adds up to added administrative burden and probably more skirmishing in permitting and permit appeals, but this fragmented set of opinions adds up to much more a win for those seeking protection of America’s waters than industry and developers who saw in Rapanos a possibility of substantial weakening of the Clean Water Act.

I should also disclose that I co-authored an amicus brief for a bipartisan group of four former EPA Administrators in this case.