Initial Thoughts on Rapanos:

In both Rapanos and Carabell, the petitioners obtained the remand of their cases, as they wanted, but should they be happy? Time will tell, but on my initial read it seems that the petitioners may have won the battle only to lose the war.

Justice Scalia offered a plurality opinion that would significantly narrow the application of Section 404 of the Clean Water Act (CWA) to private lands. Under his view, only wetlands actually “adjacent” (defined as “possessing a continuous surface water connection”) to actual “waters of the United States” (defined as “continuously present, fixed bodies of water” or streams with “a relatively permanent flow”) could be regulated as “waters” under the CWA. However appealing Scalia’s opinion may be as a matter of textual interpretation, it is in tension with the Court’s prior precedents and could not command a majority of the Court.

Justice Kennedy’s opinion provided the fifth vote for a remand to the lower courts. This would seem to be a victory for the petitioners. Yet his opinion provides ample opportunity for the federal government to demonstrate jurisdiction over the relevant parcels. Indeed, the closing portion of his opinion provides a formula for how this could be achieved. If lower courts were reluctant to give the Supreme Court’s SWANCC opinion much teeth, Justice Kennedy’s opinion virtually assures a similar application of Rapanos.

Yet the Kennedy opinion is not a sweeping victory for the government. Just as Kennedy rejects the narrow reading offered by Justice Scalia, he equally rejects the anything-the-Corps-wants-the Corps-gets approach encouraged by the dissent. Relying on SWANCC, Justice Kennedy reiterates that “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Yet where the SWANCC majority understood that a “significant nexus” required regulated parcels to to be “inseparably bound up with the ‘waters’ of the United States” (quoting Riverside Bayview Homes), Justice Kennedy would require the nexus to “be assessed in terms of the statute’s goals and purposes.”

In the near term, Justice Kennedy’s concurring opinion creates more work for federal regulators. His concurrence presumes that the U.S. Army Corps of Engineers will draft and promulgate additional regulations that identify what creates a “significant nexus” between wetlands and waters. In subsequent enforcement actions and challenges to federal jurisdiction, federal officials will also have to make a greater showing that a given parcel has the requisite ecological attributes to meet this test. But without a dramatic shift in the approach adopted by most federal courts, this is a burden the federal government will meet more often than not, particularly since most federal courts will readily defer to the Corps’ technical expertise.

It is also worth noting that the Court’s actual opinions show unreasonably apocalyptic were some characterizations of the stakes in these cases (e.g. that the Everglades could be at stake as Scientific American suggested). The arguments advanced by petitioner Rapanos were so sweeping and ambitious that they commanded not a single vote on the Court. Even Justice Scalia’s plurality explicitly rejected so narrow a reading of federal jurisdiction. Considerations of stare decisis have particular force in the statutory context. Thus, even were a majority of justices sympathetic to such an interpretation of the Act, it was foreclosed by the Court’s prior interpretations.

Finally, I would note that the Corps has long been on notice that its wetland regulations exceeded the permissible scope of federal CWA jurisdiction. Yet for years it has refused to do anything about it. After a slim Court majority revived Commerce Clause limits on federal authority in United States v. Lopez, many observers identified the Corps’ regulations as among the most vulnerable in the C.F.R., but the Corps looked the other way. Several years later, in SWANCC, a similarly slim majority struck down the “Migratory Bird Rule” on the grounds it exceeded the permissible scope of the statute and pushed against constitutional limits on federal power. Again the Corps failed to revise its rules.

As Chief Justice Roberts noted in his concurrence, the Bush Administration briefly considered revising the applicable rules so as to clarify their scope and ensure their compliance with applicable precedent, but this effort was soon scuttled.

Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.
I am not sure today’s decision is a true “loss” for the agency in the long run, but the Chief Justice’s point should be well taken. Had the Corps revised its regulations after Lopez or SWANCC, the outcome in Rapanos might have been different. Courts give agencies substantial leeway to define the scope of their activities, particularly in technical areas such as environmental regulation. Agencies that heed judicial warnings and take limiting decisions seriously will fare better in the future than those that look the other way.

[Cross-posted at SCOTUSBlog]