Politics & Policy

All Wet

Landowners may have won the battle against federal wetlands regulations, but lost the war.

Last week the Supreme Court handed down its long-awaited opinions in Rapanos v. United States and Carabell v. United States. The two cases, combined before the Court, involved landowner challenges to the scope of federal wetlands regulations. (I previewed these cases for NRO here.) As a technical matter, both landowners got what they wanted. By a vote of 5-4, the Court held that the federal government’s assertion of jurisdiction went too far, and remanded the cases back to the lower courts for further consideration. This victory may yet turn out to be illusory, however. Playing the swing role once occupied by Justice O’Connor, Justice Anthony Kennedy provided the fifth vote for remand, but did so on grounds that will do little to limit the scope of federal regulation.

#ad#The two consolidated cases turned on the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). By its terms, the CWA applies to “navigable waters of the United States,” defined in the statute as simply “waters of the United States.” For years, the federal government has interpreted this language to confer regulatory jurisdiction over waters and wetlands quite remote from navigable waterways. However expansively “waters” is defined, both landowners argued that their lands should be exempt from federal control, either because they were too distant or lacked any meaningful hydrological connection to open water. It is one thing to regulate wetlands adjacent to rivers and streams as “waters of the United States,” quite another to control wetlands alongside drainage ditches some ten or twenty miles away.

Justice Scalia announced the judgment of the Court, ordering the remand the landowners sought. Writing for four justices, Justice Scalia focused on the CWA’s text. By its terms, the law only applies to “waters,” Scalia reasoned, so only those areas that could potentially be characterized as “waters” are subject to federal control. Regulatory control over waters could extend from actual “open water” to those lands with a “significant nexus” to actual waters, as the Court had held before, but this would require more than a remote hydrological connection. At oral argument, Solicitor General Paul Clement (who clerked for Justice Scalia) argued that “one drop” should be enough of a hydrological connection to establish federal jurisdiction. According to Scalia, this was an interpretation of the Act its language could not bear.

If the four conservative justices were unwilling to stretch the express language of the CWA to facilitate environmental regulation, the four liberal justices were prepared to give the federal government a virtual blank check over privately owned wetlands. Justice Stevens’s dissent argued courts should defer to the federal government’s broad assertion of jurisdiction so as to facilitate greater levels of environmental protection. The goal of the CWA is to protect the biological integrity of all the nation’s waters. This requires broad regulatory authority, Stevens reasoned, because filling or altering a remote wetland could have wide-ranging ecological effects, even if the wetland is not particularly close, let alone connected, to open water. Therefore, if the U.S. Army Corps of Engineers determines that regulation of a given wetland is necessary to effectuate federal policy, the agency’s expert opinion should prevail. Under this interpretation, “waters” could be interpreted by the agency to encompass all marginally wet parcels if this would further environmental protection.

As many predicted, Justice Kennedy cast the deciding vote. He embraced the Court’s outcome, providing the fifth vote for reversal, but pointedly rejected Justice Scalia’s reasoning. While Justice Kennedy refused to accept the government’s assertion that a single drop of water could establish a hydrological connection, and would require federal regulators to demonstrate such connections actually exist, his opinion green lights continued federal regulation of hundreds of thousands of acres of private land.

Relying on the Court’s prior interpretations of the CWA, Justice Kennedy stressed that “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Yet Justice Kennedy interpreted this requirement far more expansively than Justice Scalia or prior courts. Whereas in prior cases the Court suggested that a “significant nexus” required a wetland to be “inseparably bound up with the ‘waters’ of the United States” to be subject to federal control, Justice Kennedy held the nexus could “be assessed in terms of the statute’s goals and purposes.” In other words, so long as the federal government asserts that regulating a given wetland serves the “goals and purposes” of maintaining water quality, regulatory jurisdiction can be upheld.

In the near term, Justice Kennedy’s concurring opinion creates more work for federal regulators. Until new regulations are adopted to conform to Justice Kennedy’s interpretation of the Clean Water Act, federal officials will have to make a case-by-case showing that a given parcel has a sufficient nexus to waters of the United States. This may be burdensome, but it is unlikely to impose meaningful restraints on the Corps of Engineers’ regulatory ambitions. Indeed, at the close of his opinion Justice Kennedy provided a virtual roadmap for the government to reassert jurisdiction over the parcels at issue in these cases before the lower courts. With Justice Kennedy controlling the Court’s outcome, the landowners in Rapanos may have won the battle only to lose the war.

 – Contributing editor Jonathan H. Adler is associate professor of law at Case Western Reserve University School of Law.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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