First of a three-part series on muddled federal wetland regulations.
Lawyers rarely agree on anything, but here's an exception: They all say the Supreme Court bungled Rapanos v. United States, a major wetlands case, almost five years ago.
Attorneys representing all interested parties say lower court judges, regulators, the business community and individual landowners continue to suffer as a result of the confusion sown by the justices whose main job is to provide clarity in the law.
The case concerned the efforts of Michigan landowner John Rapanos to develop a property that, much to his dismay, was designated as a wetland. He hadn't applied for a permit and was subsequently the target of U.S. EPA civil and criminal enforcement actions.
The Clean Water Act states that the government can regulate any discharge into "navigable waters." Traditionally, the Army Corps of Engineers interpreted the law broadly when it came to wetlands, but in Rapanos, the conservative majority of the Supreme Court sought to rein in the government somewhat. However, the court struggled to reach a coherent conclusion, with the justices split 4-1-4.
In the end, the court ruled in favor of Rapanos, but only just, and the majority split on what approach to use in how to define government jurisdiction.
Justice Antonin Scalia, joined by three of his colleagues, took one approach, writing that the Clean Water Act protects wetlands "with a continuous surface connection" to navigable water.
But the crucial fifth vote for Rapanos was provided by regular swing vote Anthony Kennedy, who came up with his own test that was a little less stringent than Scalia's.
Kennedy wrote that there needs to be a "significant nexus" with navigable waters, defined as situations when the wetlands "significantly affect the chemical, physical, and biological integrity of other covered waters." Wetlands were not under government jurisdiction when the effect on water quality is "speculative or insubstantial," he added.
None of this was much help to lower court judges, who first had to figure out which test they should adopt because it was not clear who was speaking on behalf of the court. Only then did they get to the question of how to interpret what Scalia or Kennedy had said, depending on which test they followed.
"The short answer is that the state of post-Rapanos wetlands jurisdiction is a mess," said Richard Frank, director of the California Environmental Law & Policy Center at University of California, Davis. "Rapanos produced a broad consensus of opinion, virtually unheard of when it comes to wetlands regulation, that the Supreme Court had made things worse, rather than better."
So far, eight of the nation's 11 federal courts of appeal have tackled the issue of what Rapanos really means. Although they have, in general terms, tended to embrace Kennedy's test rather than Scalia's, confusion still remains.
"The consensus is that the significant nexus test applies," said Jim Murphy, an attorney with the National Wildlife Federation. "In terms of how to apply the significant nexus test, there's not a lot of consensus."
Lower court judge vents
At least one lower court judge figuratively threw up his hands in frustration.
Senior U.S. District Judge Robert Propst of the Northern District of Alabama launched a colorful attack on the high court ruling back in 2007 in the form of a 31-page memorandum opinion.
The then 76-year-old judge was clearly vexed after the Atlanta, Ga.-based 11th U.S. Circuit Court of Appeals ruled that, in light of Rapanos, a case he had presided over, U.S. v. Robison, had to be reheard.
Propst refused to take the case up for a second time on the basis that he was "so perplexed by the way the law applicable to this case has developed."
He did not stop there.
Propst went on to dissect the Supreme Court's reasoning and questioned how lower courts were expected to interpret it.
He was particularly annoyed that the Supreme Court did not at any point state whether Kennedy's opinion should be controlling or not.
"The court could perhaps recognize that, rather than just argue with each other, they should reach clearly established law by at least a majority," he said in a stinging footnote.
Even the lawyer who, on paper, won Rapanos, M. Reed Hopper of the conservative Sacramento, Calif.-based Pacific Legal Foundation, is less than happy with the way it panned out.
The justices were "abdicating from their role," which is to provide guidance to lower courts on an issue that remains a "murky question," Hopper said in an interview.
"We were definitely frustrated by the lack of clarity," he added. "It certainly made it difficult for the lower courts."
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.
Despite multiple efforts by Hopper to get the issue back before the justices, the court has been reluctant to fix the problem.
Hopper suspects that is because all the same splits remain, despite the fact that there are now two new justices on the court, Elena Kagan and Sonia Sotomayor.
Even now, with the fifth anniversary of the June 2006 decision on the horizon, courts are still openly acknowledging the problem.
Most recently, the Richmond, Va.-based 4th U.S. Circuit Court of Appeals ruled that the Army Corps of Engineers must take another look at whether it has jurisdiction over wetlands slated for development in southeastern Virginia (E&ENews PM, Jan. 26).
The opinion, by Judge Allyson Duncan, recognized the lack of consensus over how to interpret Rapanos, but the court's job was made easier because the parties agreed that Kennedy's test should apply.
The same week, the San Francisco-based 9th U.S. Circuit Court of Appeals issued an amended version of a post-Rapanos ruling from last year, Northern California River Watch v. Wilcox.
The reason? So opinion author Judge Richard Paez could add some language saying that just because he and his two colleagues on the panel had ruled in that case using Kennedy's test, "we did not, however, foreclose the argument that Clean Water Act jurisdiction may also be established under the plurality's standard."
The National Wildlife Foundation's Murphy conceded that the outcome in Rapanos might have been worse from the environmental movement's perspective, but he noted that, by adopting Kennedy's test -- which requires a lot of fact-finding -- courts have a green light to further question government determinations on whether there is Clean Water Act jurisdiction.
In the 4th Circuit case, for example, the court required the Army Corps to do more to prove it had jurisdiction despite the fact that, in Murphy's view, the agency had produced more than enough data.
"The corps really has to do a lot of work to prove the significant nexus," he said.
Judges probably feel the same way. As they continue to wrestle with the legacy of Rapanos, they may well find themselves nodding with approval at another of Judge Propst's acidic footnotes.
"I will not compare the 'decision' to making sausage because it would excessively demean sausage makers," he wrote.
Click here to read the Supreme Court's Rapanos v. U.S. opinions.
Click here to read Judge Propst's memorandum opinion in Robison v. U.S.
Click here to read the 4th Circuit opinion in Precon Development v. United States.
Click here to read the amended 9th Circuit opinion in Northern California River Watch v. Wilcox.