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Friday, June 23, 2006

Our Nation’s Waters Dodge A Bullet: Clean Water Act Swings on Justice Kennedy’s Vote

This Full Court Press analysis is the work of guest blogger organization The Sierra Club.

On June 19, the Supreme Court handed down its opinion on whether the Clean Water Act protects our nation's wetlands. Generally speaking, there were four votes to gut this protection (Justices Scalia, Thomas, Roberts and Alito), four votes to keep it intact (Justices Stevens, Souter, Ginsburg and Breyer), and one vote to modestly circumscribe it (Justice Kennedy). Justice Kennedy's opinion reflecting that one vote establishes the precedent of the Court. The Court's 4-1-4 split ultimately did little to clarify the law, but revealed much about how individual justices feel about environmental protection and the role of courts.

The good news is that Justices Stevens et al. voted to "respect the work product of the Legislative and Executive Branches of our Government" and uphold the broad view of the Clean Water Act intended by Congress and long applied by the Army Corps of Engineers, which administers the Act's wetlands program:

The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term "waters of the United States" is a quintessential example of the Executive's reasonable interpretation of a statutory provision.

The bad news is that Justice Scalia, writing for himself and three other justices (Thomas, Roberts and Alito), openly mocked the environmental purposes of the Clean Water Act, a law which he described as "downright tedious." Describing the Corps' wetlands permitting program, Justice Scalia added that the Corps "exercises the discretion of an enlightened despot, relying on such factors as 'economics,' 'aesthetics,' 'recreation,' and 'in general, the needs and welfare of the people'" -- as if these were not factors that Congress has written into dozens of environmental statutes.

What Justice Scalia ultimately said was that, despite what the Clean Water Act says, despite what members of Congress say they said, and despite federal regulators' decades-long interpretation of what Congress said, Congress really intended to leave most of the nation's wetlands outside the scope of the Clean Water Act, as well many waterways. In his view, the Act covers only "continuously present, fixed bodies of water" and those wetlands with a "continuous surface connection" to the "continuously present" waterbodies. Talk about legislating from the bench.

While ostensibly motivated by a desire to protect "states' rights," Justice Scalia's analysis also ran counter to the wishes of states, more than 30 of whom submitted amicus briefs supporting broad federal environmental protections in this case. The states were joined by associations of state wetland, floodplain and water pollution control managers.

With one more vote, Justice Scalia would have successfully consigned to legal limbo an enormous number of intermittent/seasonal streams across the country: "We have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a 'water of the United States.'"

It is a disheartening sign that the two newest members of the Court, Chief Justice Roberts and Justice Alito, joined Justice Scalia's opinion. Though as the environmental community had feared, no one can really claim surprise.

Thankfully the Scalia-Thomas-Roberts-Alito view did not prevail here. Poised between the two 4-vote blocs was Justice Kennedy, who agreed with Justice Scalia that the case should be sent back to the lower courts, but rejected everything else in his opinion: "In sum, the plurality's opinion is inconsistent with the Act's text, structure and purpose." Acknowledging the environmental importance of the Clean Water Act, Justice Kennedy opined that a wetland is protected by the Clean Water Act if the Corps determines it has a "significant nexus" to either navigable waters or tributaries to such (including intermittent streams), and explicitly calls for deference to the Corps' determinations on this issue. Moreover, as the four dissenting justices noted, "in the long run", the Kennedy "significant nexus" test "will probably not do much to diminish the number of wetlands" protected under the Act.

Unfortunately, unlike the bright-line approach taken by the Corps and the dissent, applying the "significant nexus" test means that, unless Congress finally acts to clarify the situation, we are in for years of case-by-case administrative determinations and legal fights (and the ensuing confusion and inconsistent results) over what is protected by the Clean Water Act. Many of those legal fights will take place in front of judges appointed by George W. Bush, judges who in many cases may share Justice Scalia's contempt for federal environmental laws.

Rapanos v. US, No. 04–1034, slip op. (June 19, 2006)

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