Wednesday, July 05, 2006

Just What Does Rapanos Mean - Not All That Much

Just what does Rapanos mean? (For the background, see the previous posting)

The real issue here is how far the federal government can stick its long arm into an area which has traditionally belonged to the states- that is land planning and land use management.

Scalia makes two important observations in the plurality opinion that everyone else seems to ignore. 1st, the Army Corp’s current definitions of wetland cover up to 300 million acres nationally, including half of the state of Alaska. This is a lot of land, and just who is to have authority over this land is a very important question.
2nd, Scalia points out that one of the reasons that a number of States have sided with the federal government in this case is because siding with the federal government is a politically attractive solution. Any blame for any controversial decisions are shifted away to the states and on to a federal agency whose authority is much unreachable for those aggrieved by unfair decisions. Perhaps unwillingly, Scalia has brought up perhaps the most disturbing aspect of federal environmental regulation- When the impacts of regulation are purely local, those subject to regulation are

Kennedy’s opinion has been criticized, but in some ways he has provided a reasonable solution. To the Army Corp he is saying- justify your jurisdiction. Or in other words, prove it. Rejecting Scalia’s requirement of a hydrological connection may open the door for an even broader assertion of federal jurisdiction, however, as Kennedy indicated, his point was not just that there may be a nexus between a wetland and a water of the United States even when there is no hydrological connection, but that in some cases there may be no such nexus even when there is a minor hydrological connection present.

My real problem with the dissent- as Scalia also notes- is its lack of reliance on the Clean Water Act statute itself. The dissent’s notion of ecological connections is nowhere to be found in the statute. The dissent relies primarily on Congress’s statement of the Clean Water Act’s purpose- restoring and maintaining the integrity of the nation’s water. The problem is, the statute goes on to specify how this is to be done, and no where does it even mention ecological connections or wetlands. The dissent’s approach would provide no stopping ground for what can and can’t be regulated by the federal government.

Between Kennedy and the plurality, its unclear what direction future enforcement of the Clean Water Act will take. The questions that many of us hoped would be answered- the future of environmental law and the future of Commerce Clause jurisprudence- still remain unanswered by the fractured opinion in Rapanos. Obviously, it is clear where the liberal wing of the Court lies- unfettered Federal authority to regulate the environment under the Commerce Clause.

What remains less clear- especially after last years medical marijuana decision in Raich v. Gonzalez- is how far the other five members of the Court are willing to go to actually enforce the limits of the Commerce Clause when it comes to environmental laws.


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