The Clean Water Act in the Crosshairs

by Dave Owen

May 31, 2016

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen

Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a unanimous court, a jurisdictional determination is indeed final agency action.

The majority opinion, written by Justice Roberts, presents the kind of short, businesslike analysis one typically associates with an uncontroversial case. But then comes Justice Kennedy's concurrence, and it's a doozy. In three paragraphs, Justice Kennedy (joined, perhaps not so surprisingly, by Justices Alito and Thomas) asserts that "the reach and systemic consequences of the Clean Water Act remain a cause for concern"; that "the act's reach is 'notoriously unclear'" (quoting Justice Alito's concurrence in Sackett v. EPA); that the Clean Water Act holds "ominous reach"; and that the act "continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the United States."

This matters, of course, because if Merrick Garland is not confirmed to the United States Supreme Court, if Donald Trump is elected, and if President Trump appoints the kind Heritage-Foundation-Approved judge he has promised to appoint, Justice Kennedy will be probably be the deciding justice in any future challenge to the joint EPA/Army Corps of Engineers Clean Water Rule. Similarly, if the Sixth Circuit sets aside the rule, the Court will need five votes to reverse that decision, and Justice Kennedy would have seemed, until recently, like the most likely fifth vote. He doesn't seem that way any more.

This also is a bit surprising. In his concurring opinion in Rapanos v. United States, Justice Kennedy demonstrated a fairly nuanced understanding of, and respect for, the goals and purposes of the Clean Water Act. He even took his fellow conservatives to task for lacking such understanding and respect. So it seemed plausible that he would continue to think the act's protections serve important purposes, and that he would realize that EPA and the Army Corps implement those protections in ways that are actually quite solicitous of the state, local, and business interests that Justice Kennedy (along with many other people) obviously cares deeply about (I've written about that general subject here and here). It must have seemed plausible to staff at EPA and the Army Corps, too, for they invested years or work in writing a new rule that relies heavily on Justice Kennedy's Rapanos opinion. Now, however, it's as though that opinion never happened. In its place, both at the Hawkes oral argument and now in his concurrence, comes rhetoric seemingly plucked directly from industry lobbyists' talking points. Perhaps we should have seen this coming, for in recent years Justice Kennedy has played a key and enthusiastic role in gutting campaign finance regulation and the Voting Rights Act, joined an opinion that would have taken down the Affordable Care Act, and generally has been a fairly reliable supporter of any conservative activists' project that did not involve blocking gay marriage. But still, ...

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