The Court decided two Clean Water Act wetlands cases today: Rapanos v. U.S and Carabell v. U.S. The result in this case is far different than it first seemed and initially reported. Environmental Law now has its own Bakke. We can hope, however, that it will not similarly take 26 years for the Court to bring some clarity to the law.
Scalia’s plurality (Roberts, Thomas, and Alito) favors a major cutback on Clean Water Act jurisdiction, a statute that he describes as “tedious.” According to the plurality, the Act’s jurisdictional touchstone “waters of the U.S.” is limited to “relatively permanent, standing, or continuously flow bodies of water” that form “geographical features” such as “streams,” “oceans,” “rivers,” and “lakes.” The only wetlands that are covered under this view for the purposes of the Army Corps of Engineers Section 404 dredge and fill permitting program are those that are in such physical proximity to traditional navigable waters that there is a problem in identifying the boundary between the two. Outside the Corps’ jurisdiction are nonnavigable tributaries and wetlands hydrologically connected to such tributaries, even if they have are connected to traditional navigable waters. This view would remove from the Corps jurisdiction almost all wetlands and the nonnavigable tributaries, which serves in effect as the capillaries of the nation’s waters. If this view had prevailed, it would have resulted in a massive reduction in the Corps’ ability to protect the waters of the United Statesunder the Clean Water Act, as currently drafted.
While Justice Scalia’s plurality opinion is strikingly sweeping and remarkably disdainful of the policy and purposes of the Clean Water Act, it is only that: a plurality opinion. And, as the Chief Justice pointedly reminds us in his own concurring opinion (he also joins Scalia’s), the lower courts will now have to follow Marks v. United States, which means that Justice Kennedy’s separate concurring opinion is controlling. Under Marks, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ***.” 430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1979).
Here that is Kennedy, who rejects the most sweeping and central parts of the plurality opinion and expressly agrees with parts of the dissent: (1) “the dissent is correct to observe that an intermittent flow can constitute a stream”; (2) “It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.”; (3) “the plurality concludes * * * that navigable waters may not be intermittent. The conclusion is unsound.”; (4) “as the dissent observes, the fact that point sources may carry continuous flow undermines the plurality’s conclusion that covered “waters” may not be discontinuous.” (5) rejects “plurality’s second limitation – exclusion of wetlands lacking a continuous surface connection to other jurisdictional waters.”
Kennedy’s announced test, which the plurality rejects is nonetheless now the controlling test, just as Powell’s arguably was in Bakke in 1978. Kennedy’s proffered contextual, balancing approach also seems reminiscent of Powell in Bakke in some respects. The Kennedy test for wetlands is:
“[W]etlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.”
Court watchers are already speculating as to whether Scalia received the initial opinion assignment and lost Kennedy, or perhaps Kennedy had it and lost the dissenters, or his own way and voted for affirmance rather than reversal. If the first, why did the CJ assign this to Scalia who was bound to do what he does best – write broadly and lose votes – rather than to Kennedy, which could have resulted in a narrowly written opinion for the Court rather than a splintered Bakke mess. If the latter, Kennedy and the dissenters would have done the nation (and certainty in the law) a big favor if they could have smoothed over their differences (which are not that great) and delivered an opinion for the Court.