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Supreme Court Decision Update - Rapanos v. United States

supreme1.jpgIn today’s final Supreme ruling, Rapanos v. United States (PDF of the opinion), we get the Supremes looking at a pair of Sixth Circuit environmental cases to clarify when the Clean Water Act applies and, therefore, when federal courts have jurisdiction over certain water-related issues. This case is a real mess, with the four conservatives in the plurality, the four liberals dissenting, Justice Kennedy floating in the middle, and, therefore, no real holding.

QuizLaw Analysis: With this last decision of the day, the Supremes hit us with a whopping 104-page decision, including two concurring decisions and two dissenting decisions. And the kicker is that there’s no real holding in any of it, because there’s no majority opinion. So it took them a hundred and four pages to give us a whole lot of nothing. Quite frankly, the highlight of the whole mess is a footnote where Sclia gives thanks to the Ninth Circuit Court of Appeals for quoting Casablanca in a 2005 opinion, and then provides the relevant lines of dialogue (you can see footnote 2 on page 8 of Scalia’s plurality opinion, if you’re curious).

With 104 page opinion, it should go with out saying that this is going to be a long discussion, so tread lightly if you’re going to read on. …tread lightly.

This decision incorporates two cases that came up from the Sixth Circuit Court of Appeals involving several Michigan wetlands. To understand what’s going on here we will, unfortunately, have to take a quick look at a small portion of the Clean Water Act (the “CWA”). That relevant portion makes it illegal for anyone to discharge dredged or fill material, without a permit, into any “navigable waters.” So if someone wants to so make such a discharge, they must first get a permit from the Army Corps of Engineers. The real question, and the focus of this decision, is what qualifies as “navigable waters,” i.e., when does someone need to get a permit?

Well, the CWA defines “navigable waters” as including “the waters of the United States.” Prior court precedent has interpreted “navigable waters of the United States” to mean those waters which are, in fact, either navigable or easily capable of being made navigable. However, since the passage of the CWA, the Army Corps of Engineers has used a broader definition of what qualifies as “the waters of the United States.” Under the Corps’ definition, these waters include interstate waters, interstate wetlands, intrastate lakes and rivers, ponds, tributaries to any such waters, and wetlands which are near any such waters. And until this time, lower courts have repeatedly upheld the Corps’ very expansive definition of what qualifies as such water and, thereby, what falls within federal jurisdiction of the CWA (it’s in laying out this history, and noting how the Corps has even defined “washes and arroyos” in the middle of the desert to be qualifying waters, that Scalia goes to the Casablanca quote).

With these interpretations in mind, we can look at the two cases that got us here. In one of the cases, a guy owned some land that included wetlands which connected with drains to feed into various creeks and rivers. The closest “navigable water” was some 11-20 miles away from his property. He backfilled his wetlands, and after he was told that he couldn’t do this without a permit, got himself mired in over a decade of criminal and civil litigation. The District Court ruled that there was federal jurisdiction over his wetlands because they were adjacent to other United States water, and the Sixth Circuit affirmed this ruling on the basis of “hydrological connections” between the wetlands and “adjacent tributaries of navigable waters.”

In the other case, some folks sought a permit to dump fill material in their wetland, which is one mile from a lake (and which has a drainage ditch running along one side, on the other side of a four-foot-wide berm). Their request for a dumping permit was denied, so they eventually sued. The District Court here, too, found federal jurisdiction over their wetland because it was adjacent to a neighboring tributary, and the Sixth Circuit again affirmed on the notion that the wetland was adjacent to navigable waters.

So now we come to Sclalia’s opinion, joined by fellow-conservatives Chief Justice Roberts and Justices Thomas and Alito. Since there are only four Justices joined in this opinion, it’s a plurality decision rather than a majority decision, so it really doesn’t hold much weight. That is, lower courts are not obligated to follow the standard laid out by Scalia. On the other side, the liberal Justices have two dissents of their own, and only Justice Kennedy sits in the middle. He filed a concurrence so, as we’ll discuss below, the only real “holding” here is that the Sixth Circuit needs to rethink things (without a whole lot of guidance on how they need to think about these things).

Anyway, Scalia and his cohorts basically ruled that “the waters of the United States” should only include bodies of water like lakes, rivers, streams and oceans, which are relatively permanent. Intermittent channels of water or drainage ditches should not be included. Similarly, the way the CWA refers to “navigable waters” makes it clear, to Scalia, that the CWA is meant to apply to these same types of permanent water. Thus, Scalia is ultimately saying that the Corps’ expansive definition, and therefore its expansive application of the CWA’s federal jurisdiction, is way over the top.

Turning his focus to wetlands in particular, Scalia says that they should not be considered adjacent to waters of the United States simply because there is some hydrologic connection. Instead, there must be a continuous connection between a wetland and waters of the United States, such as a large creek, which would make it hard to really make a distinction between the wetland water and the other body’s water. Only then does the wetlands fall within the CWA’s purview and thus, only then is there federal jurisdiction over them. Since this is not the standard applied by the Sixth Circuit, both cases were remanded by the plurality so the Sixth Circuit could reconsider whether there is actually jurisdiction over the specific wetlands in question.

As mentioned above, Justice Kennedy did not join with the plurality, but filed a concurrence of his own. He concurs with the ultimate judgment, that the cases should be remanded for reconsideration by the Sixth Circuit. However, he disagrees with Scalia’s application of what qualifies as relevant waters. He believes the Sixth Circuit was correct in saying that a wetland falls within the CWA if there is some “significant nexus” between the wetland and other navigable waters – that is, if they have a significant effect on navigable waters. This is a more expansive definition than Scalia proscribes, because Justice Kennedy believes that the CWA should protect certain waters that fall outside of Scalia’s definition, particularly certain wetlands. However, this still reigns in the Corps’ current definition, which Kennedy believes goes too far, allowing for regulation of things like drainage ditches. But because Kennedy agrees that the Sixth Circuit needs to rethink things, he concurred with the judgment to remand.

Meanwhile, Chief Justice Roberts filed a concurring opinion. He signed off on Scalia’s decision, so he’s with Scalia on the standard that should be applied in determining what qualifies as relevant water. However, he writes a short opinion of his own to lament. He laments the fact that the Corps and the EPA weren’t able to establish their own proper and valid definition. He also laments that there’s no majority opinion in this case, leaving things a bit of a mess and requiring the CWA to really be applied on a case-by-case basis.

On the other side of the bench, the liberal Justices filed two dissenting opinions. Justice Stevens wrote the main dissenting opinion, joined by Justices Souter, Ginsburg and Breyer. Justice Stevens sees Kennedy and the Scalia plurality as wiping out decades of environmental protection by drastically reigning in the applicability of the CWA. Stevens believes more deference should be given to the Corps’ practice over the last 30 years, and the answer here, for him, is that the Corps has decided wetlands like those in these two cases fall within the CWA and need to be regulated to preserve the quality of our country’s water. Case closed, in his book. Stevens also believes this comports with prior Supreme Court jurisprudence, and that Scalia is taking a wrongfully revisionist approach to this precedent. The dissenters also agree with Kennedy that Scalia’s standard goes too far, creating two conditions/limitations which “muddy the jurisdictional waters.” Stevens sees no logic behind requiring CWA water to be “relatively permanent,” nor does he see any logic behind the requirement that wetlands have a continuous connection to navigable water. Finally, Stevens ends with a footnote which notes that he assumes that Kennedy’s approach is what most folks will use, but urging courts to uphold the Corps’ jurisdiction over waters even if they opt to go with Scalia’s test.

And finally, Justice Breyer wrote a brief additional dissenting opinion to hammer home the point that he believes Congress, in passing the CWA, intended for the Corps’ to make the technical judgments and decisions about what water falls within federal jurisdiction. Thus, he believes Scalia’s plurality and Kennedy, with their smack-down of the Corp’s standards, are going against Congressional intent. He also believes that the lack of direction offered by the mess of these opinions “call for the Army Corps of Engineers to write new regulations, and speedily do so.”