Like so much of the legal community, this Blog has followed the history of the federal government's pursuit of John Rapanos, the surly Michigan landowner who has refused to recognize Clean Water Act jurisdiction over his private property. See Posts of March 12, 22 and 25; October 15, 2005; and December 1, 2005.
Today was D-Day (or Decision Day), as the United States Supreme Court published its opinion in Rapanos v. United States. In a narrow victory (both in the vote and in the basis for the ruling), the Supreme Court reversed the lower courts' finding that Mr. Rapanos was liable and sent the case back to those courts for further proceedings.
The decision was made along predictable ideological fault lines, with Chief Justice Roberts and Justices Scalia, Thomas and Alito attaching limitations to federal jurisdiction and Justices Souter, Ginsberg, Stevens and Breyer in this instance favoring federal authority over property rights. Predictably, Justice Kennedy came down in the middle, agreeing that the government's case was flawed but refusing to engage in the same analysis of the limits of federal authority than was done by either the group of four Justices to his right or the group of 4 Justices to his left.
In overturning Rapanos' liability, Justice Scalia (writing for himself and for Roberts, Thomas and Alito) observed:
The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act--without any change in the governing statute--during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States--including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a "water of the United States."
Justice Kennedy characterized the Scalia plurality as too narrow in its placing of waters beyond Clean Water Act jurisdiction if the waters either were not routinely flowing or standing or if the waters were not directly connected to such flowing/standing waters. He criticized the dissent, however, for too little recognition that the word "navigable" is not infinitely elastic so as to fit every crevice of water, however isolated (" the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters"). He adopted his own test (whether the wetlands at issue have a "significant nexus" with navigable waters) and reversed the lower courts' decision simply because the courts did not consider this question.
Therefore, Mr. Rapanos faces continuing litigation back in the lower courts on the significant nexus issue. If such a nexus is established, then Mr. Rapanos' 5-4 victory could turn around to become a 5-4 defeat the next time the case reaches the high court. Nonetheless, for those of us accustomed over the last 40-50 years to seeing the Supreme Court rarely put brakes of any kind on the federal government's appetite for expansion, today was indeed one for the books.
Always refreshing to hear a riatonal answer.
Posted by: Daniel | October 25, 2012 at 05:13 PM