February 9, 2011

"Still Reckoning With Rapanos"

By "Still Reckoning With Rapanos"

Author: Reed Hopper

There is a lively discussion at the Volokh Conspiracy over the Supreme Court's landmark decision in Rapanos that PLF won in 2006.  That case should have made it clear that there are limits to federal power but the Corps and many lower courts still haven't gotten the message.  The discussion centers on which opinion in the 4-1-4 split decision should control and how the lower courts and the Corps have responded.  I have added my two-cents in a post below:

The broad “significant nexus” test is clearly not a subset of the narrower plurality test that would find federal jurisdiction only when the wetland has a continuous and indistinguishable connection with another covered water. As Justice Scalia noted in Rapanos, Kennedy’s “significant nexus” test is barely short of the dissent’s expansive interpretation that would allow federal regulation of virtually all waters in the Nation.

On the contrary, the plurality test is a logical subset of the “significant nexus” test. Given the Corps’ approach, in every case where the plurality test is satisfied the “significant nexus” test would also be satisfied. The Corps is on record for the proposition that all wetlands, by definition, have a significant effect on downstream navigable waters. And of course, any wetland that is indistinguishable from another covered water, like a river, lake or stream, that is itself connected to a navigable-in-fact waterbody, would be deemed by the Corps to have a significant nexus. When the plurality test is satisfied, all nine justices would agree that federal jurisdiction applies, therefore, under Marks, the plurality opinion should control.

The problem lies in the ironic fact that the lower courts are split on how to apply Marks’s reading of split Supreme Court decisions and the Supreme Court has been unwilling to resolve the conflict. On three occasions, we, at the Pacific Legal Foundation, have petitioned the court specifically to address Marks in the context of post-Rapanos decisions. But to no avail.

The other problem lies in the fact that, as Professor Adler notes, the Corps simply hasn’t gotten the message from Lopez, SWANCC and Rapanos that there are statutory and constitutional limits to federal power. The Corps cannot regulate all waters.

The failure of the Corps to adopt formal rules redefining its authority, as the Justices in Rapanos have advised, is strategic. As long as the agency relies on “guidelines” and case-by-case analysis, the agency’s overly broad interpretation of its authority can never be challenged on its face. This allows the Corps to continue to assert both inconsistent and unsupported claims of jurisdiction, with very little risk of being overturned. This is really a breach of the public trust.

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