A shot to the moon that missed

June 14, 2012 | By DAMIEN SCHIFF

Pacific Legal Foundation has long been in the courtroom challenging the EPA and the Corps’ extra-statutory and unconstitutional expansion of federal authority under the Clean Water Act.  Before PLF’s 2006 Supreme Court victory in Rapanos v. United States, the agencies would assert authority over any arguably “wet” property so long as a single drop of water could in theory travel from the property to a navigable-in-fact waterbody.  The Court in Rapanos correctly put an end to this dubious “hydrological connection” test.  Yet the agencies continue to try to expand their authority, most recently in their draft guidance.

But every once in a while a case comes along where the court rules for the government, and that ruling is fair on the merits.  The Central District of California last week issued a decision in United States v. HVI Cat Canyon, Inc., a case concerning among other things a civil action by the feds to recover damages for a series of oil spills in the Los Angeles area.  In the decision, the court denied the defendant’s motion to dismiss.  With respect to the Clean Water Act claims, the defendant had argued that “navigable waters,” as used in the Clean Water Act, means only navigable-in-fact waterbodies.  Uh, nice try counsel, but that boat (so to speak) left the dock a long long time ago.  To be sure, we argued in Rapanos that the statutory phrase “navigable waters” should be limited to navigable-in-fact waterbodies and tributaries that are closely linked with such waterbodies, but even Justice Scalia’s otherwise laudable plurality opinion rejected that proposition (not to mention Justice Kennedy’s concurrence and Justice Stevens’ dissent).  To be sure, Rapanos was a purely statutory decision, and the Court did not decide whether Congress could constitutionally regulate waterbodies and wetlands that are far removed from truly navigable waters.  But it doesn’t appear from the Central District’s decision that the defendant raised that argument.  It will be interesting to see what arguments the defendant tries to make to disprove statutory jurisdiction under Rapanos.