Supreme Court’s “Nexus” author expresses second thoughts

By Lewis Perdue

The Rapanos v. United States decision — which currently dominates debate about federal jurisdiction and enforcement actions — acknowledges that even the Supreme Court has not been able to figure out definitively how to define many provisions under the Clean Water Act (CWA) such as whether a dry stream bed or land around it can be considered “navigable waters.”

The lack of clarity in the original law along with:

• Definitions drawn from court cases,
• EPA regulations and
• Discretionary enforcement decisions by the U.S. Army Corps of Engineers,

have drawn bitter lines and mounting controversy between environmentalists who cheer the court and federal actions and farmers who see those actions as unfounded and illegal over-reaching.

 

However, one key Supreme Court Justice — Anthony Kennedy — may be in the process of backing away from a his pivotal “nexus” opinion in Rapanos.

 

U.S. Supreme Court Still Scratching Hallowed Heads

 

Kennedy’s “nexus” argument” has been cited in numerous federal court cases including Duarte v. U.S. Army Corps of Engineers in Northern California.

In that current California case, the judge cited nexus as justification for finding that the Duarte property should be considered as part of “The Waters of the United States,” she cites a plurality decision by the U.S. Supreme Court, Rapanos v. United States which was a fractured, 4-4-1 decision.

Justice Kennedy was a “tie-breaker” in that case, meaning that he concurred in the decision, but did not agree with the other four justices in their specific reasons.

In Rapanos, those four justices rejected Kennedy’s “nexus” argument when they joined the Court’s official decision that stated:

“The phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams,’ ‘oceans, rivers, [and] lakes’….“

Further that decision noted that:

“Those terms all connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”

and

“A wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection.”

 

Current decision does not rely on solid Supreme Court precedent

 

However, the judge in the Duarte case relied on Justice Kennedy’s concurring decision that:

 

Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.

When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term “navigable waters.”

Significantly, the Ninth Circuit Court of Appeals, which includes California, has also adopted Kennedy’s “nexus” definition. However, a close reading of Justice Kennedy’s remarks during the Rapanos arguments before the court indicate that he may be having second thoughts about his nexus conclusion.

Justice Kennedy hints at skepticism over his “nexus” opinion and constitutionality of Clean Water Act

 

In what could ultimately be a blow for nexus proponents, U.S. Supreme Court Justice Anthony Kennedy recently commented during arguments in a recent case before the Court that,

“[T]he Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice,”

 

For more, see Wall Street Journal: “Supreme Court Water Fight.”

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Articles in this series (so far)

• Dire consequences face every farmer & landowner who fails to grasp the vast and vague regulation of the Clean Water Act
• Clean Water Act Permits: Expensive, time-consuming, uncertain
• Ag exemptions to the CWA in law and as interpreted by Courts, EPA & Army Corps of Engineers
• How does soil become a pollutant? And a plow a “point source” of pollution?
• Supreme Court’s “Nexus” author expresses second thoughts
• Clean Water Act: A Bare-Bones Primer

Interesting and/or helpful links

• Army Corps of Engineers v. Hawkes Co.
• Hawkes argument transcript
• Rapanos v. United States,
• Rapanos Argument
• Entergy v.Riverkeeper
• Borden Ranch
• Sackett v. EPA
• The Economics of Environmental Regulation, Sunding & Zilberman, Natural Resources Journal
• 404 Permits Economic Analysis by EPA & Corps of Engineers