February 8, 2011

The narrative of Rapanos

By The narrative of Rapanos

Author:  Damien M. Schiff

The New York Times ran this piece this week on the struggle the courts, the agencies, and especially landowners have had in interpreting and applying the Supreme Court's most recent decision on the scope of the Clean Water Act, Rapanos v. United States.  My colleague Reed Hopper, who won Rapanos in the Supreme Court, is quoted extensively .  What I found most interesting about the article is the commentary from former Solicitor General Paul Clement (now in private practice), who argued the government's case.

Paul Clement, the lawyer who argued the case on behalf of the government and is now in private practice with King & Spalding, blamed the confusion in part on the fact that the parties had not focused in their briefs on the question of where to draw the line.

On the one hand, a majority of the justices thought there was an overreach of federal power, but all agreed that Hopper's "very narrow theory of the scope of federal power," in which only navigable waters would come under government jurisdiction, went too far, he said.

Both parties focused on Hopper's argument at the briefing stage, which "may have contributed to the lack of a clean majority opinion," Clement added.

I think that Clement is being a little unfair.  We never argued that the feds' jurisdiction is limited to navigable-in-fact waters, period.  Rather, we argued that regulability began with those waters, but that liability could still attach even if the initial discharge happened someplace upstream, so long as that discharge could be proved to have ended up in navigable-in-fact waters.  Perhaps a little nuanced, but certainly much much more palatable than the "there are no limits to federal power" approach that Clement presented so forcefully and, thankfully, rather unsuccessfully.

What to read next