Wednesday, July 05, 2006

Thoughts On Rapanos (Clean Water Act Case)

The lonely libertarian has finally had the chance to read through Rapanos v. United States, the recently decided Supreme Court decision on the extent of federal jurisdiction under the Clean Water Act.

First the background, which is available in more detail here and here. At issue is the development of parcels of land that the U.S. Army Corp of Engineers has labeled “wetlands.” Federal jurisdiction was asserted because these wetlands were adjacent to waters which flowed in to navigable waterways of the sort which have always been subject to federal jurisdiction. In 1985 in Riverside Bayview, the Supreme Court gave the Army Corp the okay to regulate wetlands which were adjacent to traditional navigable waterways. In 2001, the Supreme Court decided in Solid Waste Agency of Northern Cook County (SWANCC), that the Army Corps jurisdiction under the Clean Water Act did not extend to isolated waters whose only connection to larger waters was through the flight of migratory birds. The consolidated cases at issue in Rapanos fell between SWANCC and Riverside Bayview, as the wetlands in question were not isolated, but only tenuously connected to traditional navigable waterways. In certain circumstances, the wetlands lay directly adjacent to small brook or streams which flowed directly into larger navigable waterways. In other circumstances, the wetlands were only connected through seasonal flows or drainage ditches.

Several points should be made, particularly for the readers of the lonely libertarian who are laymen to Constitutional law.

1) This is not a question of the desirability of environmental policy. As the federal government is one of limited powers, and the question here is how far those powers extend when it comes to regulation of the environment

2) The real question here was whether or not the U.S. Army Corp of Engineers asserted jurisdiction too broadly in the regulation of these wetlands. This is a question of statutory interpretation of the Clean Water Act.

The early returns seem to be as the MSNBC article suggests- a muddy mess. The Court produced no majority opinion, meaning that in the future, “the law” will be the narrowest view in the majority- this would be Justice Kennedy’s solo opinion, which urges proceeding on a case-by-case basis to determine whether or not the Army Corp has wetlands jurisdiction in any given scenario. Here’s the low down on what all the justices had to say:

Scalia seems to be the only one who actually relies solely on the statute to interpret the statute. The dissent criticizes Scalia’s requirement of a continuous hydrological connection, but as Scalia points out, the “adjacent” language that the dissent relies on is not statutory, but the Court’s own language from Riverside Bayview.
Roberts's concurrence is really just a “cant we all just get along” lament, as he continues to struggle to bring unanimity to the Court.

Kennedy’s concurrence rejects Scalia’s surface hydrological connection requirement, and instead imposes a case-by-case inquiry to ensure that wetlands being regulated do in fact have a significant nexus to non-navigable tributaries.

The dissent seems to focus on 1- the overarching purpose of the Clean Water Act, which is to restore and maintain the integrity of the nation’s waters, and 2- a broad interpretation of the Court’s use of the term adjacent in Riverside Bayview.

All in all, the decision- or lack thereof- is not all that surprising. It’s not surprising to see Stevens, Souter, Ginsburg, and Breyer maintain their tradition of absolute deference to the legislative and administrative authority of the federal government. Nor does the plurality’s decision raise any eyebrows. If anything, it’s surprising that Scalia didn’t go further. And even Kennedy was not very surprising in filling the middle role of Sandra Day O’Connor. He not only took the middle position, he even took the O’Connor approach of providing a narrow and specific answer, rather than a broad sweeping solution. Given the makeup of the Court, any hopes for a clear, broad sweeping solution were probably pipe dreams at best.


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