In the 2001 SWANCC case, the U.S. Supreme Court chastised the Army Corps of Engineers for asserting federal control over remote, isolated water bodies that had nothing to do with “navigable waters” covered by the Clean Water Act. According to the High Court, the agency “exceed[ed] the authority granted” it under the Act and raised significant constitutional questions about federal authority to regulate local waters subject to state control.
In PLF’s 2006 Rapanos case, the Supreme Court rejected the Corps’ regulation of all tributaries connected to “navigable waters,” because such regulation would also exceed federal authority granted the agency under the Clean Water Act. Instead of complying with the limitations established in these cases, the Corps (and EPA) set out to undermine them. In 2008, the Corps and EPA adopted “internal guidelines” that, in effect, authorized agency regulation of the very waters the court held could not be regulated by the federal government.
In PLF’s 2012 Sackett case, the Supreme Court held compliance orders issued by EPA under the Clean Water Act could be challenged in court. Justice Alito wrote a scathing concurrence that showed he had little patience for the government’s heavy-handed enforcement tactics and overly broad interpretation of the Clean Water Act. The Justice observed the “reach of the Clean Water Act is notoriously unclear” and that under federal regulation “any piece of land that is wet at least part of the year” could be designated a “wetland” putting “property owners at the agency’s mercy.” With a clear sense of outrage, he added, “unsurprisingly, the EPA and the Army Corps of Engineers interpret the [Act] as an essentially limitless grant of authority.” To drive the point home, Justice Alito concluded, “We rejected that boundless view” in Rapanos and SWANCC.
If these comments mark Justice Alito an enemy of expansive federal regulation under the Clean Water Act, EPA and Corps officials apparently feel they have an ally in Justice Kennedy. But they are wrong.
In Rapanos, Justice Kennedy wrote a solo opinion that authorized regulation of certain wetlands that have a “significant nexus” with a down stream “navigable water.” In putative reliance on this “significant nexus” test, the Corps and EPA have decided to go for broke. In 2015, they issued revised regulations that assert federal control over ALL tributaries, waters within 4,000 feet of ANY tributary, and most lands within the 100 year flood plain of ANY tributary. The problem is that Justice Kennedy intended his “significant nexus” test to limit the reach of the Clean Water Act, not provide carte blanche for the Corps and EPA to regulate virtually all waters in the United States and much of the land. In Rapanos, Justice Kennedy expressly stated that under his test some tributaries would be too insubstantial to be regulated, but the agencies’ new Clean Water Rule (known as the “waters of the United States” or WOTUS rule) expressly regulates ALL tributaries, no matter how remote or insubstantial. The WOTUS rule is patently inconsistent with the Kennedy opinion.
If Justice Kennedy’s intent was not clear in Rapanos, it’s certainly clear now.
During oral argument in PLF’s recent Hawkes case, in which the Supreme Court ruled that jurisdictional determinations issued under the Clean Water Act may be challenged in court, Justice Kennedy raised eyebrows when he stated the Act was “probably unconstitutionally vague.” Some have dismissed this opinion as nothing more than a “one off” or an inconsequential aside. But Justice Kennedy put his words in writing in his concurring opinion in Hawkes.
Among other things, Justice Kennedy stated the “reach and systemic consequences of the Clean Water Act remain a cause for concern.” He referenced Justice Alito’s complaint from Sackett in which he said “the reach of the Act is notoriously unclear” and that the “consequences to landowners even for inadvertent violations can be crushing.” He added that if the government did not provide landowners with clear and binding jurisdictional determinations “the Act’s ominous reach would again be unchecked” and would lead to a due process violation. He concluded, “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 Nation.”
Justice Kennedy is not an advocate for expansive regulation under the Clean Water Act, as federal officials suppose. To the contrary, he appears to be as fed up with agency overreaching as is Justice Alito. And, for good measure, you can add Justice Thomas and Chief Justice Roberts who have previously ruled to limit the scope of the Clean Water Act as interpreted by the Corps and EPA.
This suggests that the agencies’ new WOTUS rule will meet an unwelcome reception when it finds its way to the Supreme Court. At least among these four justices. The WOTUS rule is now pending in the 6th Circuit Court of Appeals where it has been challenged by PLF, 30 states, and 70 other parties for exceeding statutory and constitutional authority. The court has enjoined the rule nationwide based on its preliminary conclusion that the rule is likely invalid on its face.
The Corps and EPA would do well to rethink their arrogation of authority and align themselves with Supreme Court precedent limiting federal jurisdiction under the Clean Water Act.