Justice Scalia and Waters of the US

The Swamp Stomp

Volume 16, Issue 7

The passing of Supreme Court Justice Anthony Scalia could mean dramatic changes in how the Court interprets the recent Waters of the US rules. Many Court watchers expect that the recent Sixth Circuit Court of Appeals decision to stay the Clean Water rule would eventually end up in the Supreme Court.

The Clean Water Rule has been on hold since October 2015. If the current rule is deemed illegal, it is likely the US EPA will appeal to the Supreme Court. However, the makeup of the Court is evenly divided between a conservative and liberal bench. Justice Scalia often sided with the more conservative side and many 5 – 4 decisions came down to his more conservative views.

In the event that the Clean Water Rule were to be deemed illegal and the EPA brought it to the Supreme Court a 4-4 decision would uphold the lower court’s ruling and the rule would be tossed out. If the rule were to be upheld by the Circuit Court a similar challenge by the private sector would most likely meet with the same split Court decision and the lower ruling would also stand.

The timing of the Circuit Court’s pending decision also plays a key role in how the Clean Water Rule moves forward or not. It is unlikely that a new Justice will be seated before the Circuit Court rules. However, given the amount of time it will take for the appeals process to move forward, it is likely that whomever is the new Justice will mostly likely be the deciding vote.

It is important to note however, that Chief Justice Roberts has somewhat telegraphed his views on the US EPA’s Waters of the US role. In the 2006 Rapanos case, he strongly urged the EPA to write the type of rule that is currently on hold. He said EPA didn’t issue a jurisdictional rule after the court’s 2001 ruling in Solid Waste Agency of Northern Cook County v. Army Corps. If it had, Roberts wrote, EPA would have gotten “generous leeway” from the court.

“Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act,” Roberts wrote, “the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.”

Jon Devine of the Natural Resources Defense Council said EPA seems to have done just that, and it appears to have addressed Kennedy’s “significant nexus” test by relying on science underlying hydrological connections to establish its jurisdiction.

“I think it’s an open-and-shut case,” Devine said. “The agency is going to be entitled to a lot of deference in how they determine what waters need to remain protected.”

Many Court watchers suggest that the rule should not stray too far from the Kennedy opinion.  However, much of what is being debated now was never addressed by Justice Kennedy.  The recent 4,000 and 1,00 foot boundaries are additions never expressed in any of Justice Kennedy’s writings.  His focus was to seek a scientific basis for a significant nexus to establish jurisdiction.  The final rules do not provide any scientific basis for the boundary limits and are the focus of much of the debate.

“As long as the court’s makeup doesn’t change,” Thomas Lorenzen, a former environmental lawyer at the Department of Justice said, “this is all going to be a play for Justice Kennedy.”

With the passing of Justice Scalia, the Court’s makeup has changed. What remains to be seen is what the impact is.

With 30 years on the bench, Justice Scalia was the longest serving Justice of the Supreme Court. He was a great American and we owe a debt of gratitude for his dedicated service to justice. We at the Swamp School wish his family peace and prayers for their loss.

1 thought on “Justice Scalia and Waters of the US

  1. So I have to ask, why does the 6th Circuit Court of Appeals/Judge have the power to put a Nationwide stay in the US instead of only the smaller number of States under the 6th Circuit jurisdiction? Basically, this would imply that any one of the 13 Circuit Courts of Appeals representing could influence the applicable laws for all the other Circuit Court systems. I thought the Circuit court system only have jurisdiction over the district courts in their representative states. If someone can tell me haw this works, it would be great.

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