WETLANDS:

Georgetown Law's Richard Lazarus and other experts examine Supreme Court ruling

In a 5-4 decision this week, the Supreme Court of the United States ruled the U.S. EPA and Army Corps of Engineers may have misinterpreted the Clean Water Act in the cases of Rapanos v. United States and Carabell v. Army Corps of Engineers. During today's E&ETV Event Coverage, a panel of experts hosted by the Georgetown University Law Center talk about what the Court's ruling means for the future of the landmark environmental law. Speakers including Georgetown Law's Richard Lazurus, Virginia Albrecht of Hunton & Williams, Lawrence Liebesman of Holland & Knight and the Justice Department's Malcolm Stewart discuss the decision.

Transcript

John Echeverria: I am John Echeverria, the executive director of the Georgetown Environmental Law and Policy Institute and welcome to this second, third, fourth, sixth, eighth edition in a series of programs that the Supreme Court Institute and the Georgetown Environmental Law and Policy Institute have held on important decisions in environmental law coming out of the US Supreme Court.

The cases we will be discussing today are the consolidated cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers dealing with the scope of the Army Corps of Engineers authority to regulate the filling of wetlands under the Clean Water Act.

The legal question presented is how far the Clean Water Act's jurisdiction over navigable waters, defined by the act to mean the waters of the United States, actually extends.

These cases were teed up, so to speak, by two prior Supreme Court wetlands cases. In 1985, in the Riverside Bayview homes case, the court ruled that the Army Corps' wetlands jurisdiction extended to wetlands adjacent to traditional navigable waters.

In 2001, in the Swank case the court ruled that the Clean Water Act jurisdiction does not extend to isolated wetlands where federal jurisdiction is premised solely on the presence of migratory bird species.

Rapanos and Carabell present, so to speak, the intermediate question, whether the Clean Water Act jurisdiction extends to wetlands that are adjacent, not to traditional navigable waters, but to tributaries of navigable waters.

The court answered the question in an unusually fractured set of opinions in three different ways; no, yes and it depends. Justice Scalia, writing for himself and the Chief Justice as well as Justices Alito and Thomas, set forth a two-part jurisdictional test which he said was not met in this case.

That one, the wetlands be adjacent to an essentially permanent body of water connected to traditional navigable waters. And two, that the wetlands have a continuous surface connection with that water.

Justice Stevens, for himself and Justices Souter, Ginsburg and Breyer, would have upheld the Corps exercise of jurisdiction under its existing regulations asserting broad authority to regulate wetlands adjacent to tributaries. And finally, Justice Kennedy, taking an intermediate position, called for application of a case-by-case test to evaluate whether specific wetlands adjacent to tributaries have a significant nexus with navigable waters.

A majority of the court, the Scalia plurality and Justice Kennedy, voted to vacate the decisions of the Sixth Circuit and remanded the case for further deliberations.

The Chief Justice filed a concurring opinion lamenting the lack of a majority opinion for the court, which he largely blamed, surprisingly it seems to me, on the Army Corps of Engineers for its failure to line up - to refine its regulatory definitions of wetlands in the aftermath of the Swank decision.

Justice Breyer, in a separate dissenting opinion, sounded the same theme, also castigating the Corps for its inaction on regulations and urging the Corps to move forward with new regulations as quickly as possible.

We are pleased today to be joined by four distinguished panelists. Virginia Albrecht is a partner with the firm of Hunton & Williams, a highly experienced wetlands practitioner who filed a brief in the case in support of the petitioners for the Foundation for Environmental Progress.

Richard Lazarus is a professor here at the Law Center and the director of the Georgetown Supreme Court Institute. Richard did not actually file a brief in this case, while he did, I should note, achieved a victory, a unanimous victory, before the Supreme Court in the SD Warren case.

Richard Lazarus: So that's the difference.

John Echeverria: And I guess that's the difference right there. Larry Liebesman is a partner with the firm of Holland and Knight and filed a brief in the case in support of the petitioners on behalf of an amicus group led by the National Stone, Sand, and Gravel Association. And finally Malcolm Stewart from the Solicitor General's office who was on the brief for the United States.

We'll proceed as follows; I have three basic questions to pose to the panel. One is, what did the court rule? And two, what does it mean for the future of the wetlands program? And three, what does all this mean for the future of environmental law in the Supreme Court?

I've given somewhat more detailed and elaborated versions of those questions to the panelists, but that gives you a basic idea. And so we will move through each of those three questions providing an opportunity for each member of the panel to respond to the questions.

We will try to wrap that all up by one o'clock, leaving a half-hour for questions and comments from the highly experienced and engaged audience that's joined us here today.

So, going forward, Malcolm if I can turn to you first, could you give us your insights and observations on what the Supreme Court did in this case? And what, if anything, did it decide?

Malcolm Stewart: Well first I'd just like to offer the caveat that the various governmental agencies who were involved in the administration of the Clean Water Act are just at the very beginning of analyzing the opinions, determining what they mean and determining what the proper response is. And I don't want to purport to give an official government view on that subject. So I'm going to try to be suitably opaque, but if I lapse into kind of clarity or coherence, just take it as the musings of one person rather than the view of the government.

In terms of the rule of law that's established by the case I think it's really stated in the last paragraph of Justice Stevens' dissenting opinion. That is the rule of law is that the Corps can regulate wetlands adjacent to tributaries if either the plurality's test is met or the test in Justice Kennedy's concurrence is met. And Justice Stevens suggests that that may be of theoretical importance only because, I think, the general reaction to these opinions thus far has been that the plurality is bad for the government. The dissent is good for the government. And Justice Stevens' opinion is somewhere in between. And therefore it's the only one that really matters. And even Justice Stevens seems to suggest that the cases will be very rare in which the Corps could fail to meet Justice Kennedy's standard and yet could satisfy the plurality standard.

At least my preliminary view of the opinions is that it's not at all clear that that is so. I think that there are likely to be a non-de minimis number of cases in which the plurality standard is actually easier for the government to satisfy than is Justice Kennedy's. And I think there's really more in the plurality opinion that's good for the government than people have really realized. I mean I think in part that's because the plurality so quickly and emphatically dispatches the central argument that was made by the petitioners in Rapanos that people almost overlook that portion of the opinion.

That is the theory that the petitioners had advanced was that the only wetlands that could be protected under the Clean Water Act were wetlands that directly abutted traditional navigable waters. And that wetlands adjacent to non-navigable tributaries were category excluded from the Corps regulatory jurisdiction. And in just over a page of the opinion, the plurality quite unambiguously rejects that view. And I think because the bulk of the plurality opinion in terms of sheer number of pages is spent excoriating the Corps of Engineers, that the atmospheric suggests that the substance of the opinion is less favorable to the government than it really is.

As I read the plurality opinion it basically adopts, with respect to continuous tributaries, that is tributaries in which there is a more or less year-round flow of water, with respect to continuous tributaries, the plurality basically says what the government says, namely that they are categorically covered by the Clean Water Act.

It doesn't seem to matter to the plurality how far from the traditional navigable water, the particular polluted portion of the tributary is. It's still covered so long as there is a continuous flow all the way to the traditional navigable waters. And if the wetlands adjacent to them flow into the tributaries themselves, they're categorically covered as well. And I think the Kennedy opinion, in some respects, is not as favorable to the government.

That is Justice Kennedy's standard is that with respect to wetlands adjacent to traditional navigable waters, there can be a per se rule that those are automatically covered. But with respect to all wetlands adjacent to non-navigable tributaries the view of the concurrent seems to be that at least absent new regulations from the Corps, the Corps would always have to engage in some sort of case-by-case inquiry to determine the nexus between the wetlands and the navigable waters downstream. And again, that is so in Justice Kennedy's view, even with respect to wetlands that are adjacent to a stream that flows continuously to the traditional navigable water.

Whereas the plurality would say, I think, that's covered per se without the need for an empirical inquiry into the likely effect on the traditional navigable waters.

Justice Kennedy seems to say, no, unless the Corps amends its regulations something more is required. The Corps is going to have to make some sort of site specific showing that there's actually likely to be some effect on the traditional navigable waters downstream.

Now it may be that in most of the cases that the plurality's view would cover, we would ultimately be able to persuade Justice Kennedy that a significant nexus existed. But it would be a lot more burdensome to try to amass the proof than simply to rely on the sort of per se rule that the plurality announces. And at least for the next few years our job is not going to be to try to persuade Justice Kennedy, it's going to be to try to persuade a lot of lower court judges scattered around the country who will have varying levels of sympathy for the Corps regulatory efforts.

So I think with respect to a meaningful number of cases the Corps is better off with the plurality's approach of saying, with respect to the continuous tributaries, you can regulate adjacent wetlands regardless of empirical evidence as to the likely impact on the traditional navigable waters.

John Echeverria: The floor is open to any of the other panelists who want to comment on that question. Larry do you want to?

Larry Liebesman: Well let me sort of give my reaction to what Malcolm covered, which I think in many ways captures a lot of sort of the nuances that came out of the opinions yesterday.

I mean I think that what came out of the Corps yesterday was a philosophical divide between the approach taken by the Scalia for the plurality, and going to sort of a literal interpretation of what navigable waters means. But in doing so positing a test that was strictly hydrologically based, which means that under that test I would agree that in many cases it could be easy to define jurisdiction by finding a continuous flow.

However, I'm not so sure that Scalia defined what is a continuous flow in a clear meaningful way. I mean I think if you're going to apply that kind of test, you know, if certain water is only going to flow some of the year and not all of the year is that a continuous flow? Is it going to be a high water event? Is that going to be enough?

So if you applied that test only, separate from the Kennedy test, is that going to be enough to establish jurisdiction easily? I'm not so sure it is. I think if there's going to be litigation on that test I think there's still going to be a lot of factual disputes as to what constitutes a continuous hydrologic connection.

I would agree with the analysis that in many ways that is an easier test. I mean the government can look at waters that are defined by USGS as navigable waters for example and look at tributaries and say that's dispositive.

In other situations, for example cases involving our clients that we represent National Stone, Sand, and Gravel as well as some public agencies doing work in ephemeral water bodies, water bodies that are only ponds sometime of the year, where there isn't an easily discernible flow.

I'm not so sure that that test would necessarily sweep in those kinds of waters. Now on the Kennedy side of things I think it's interesting that Kennedy's approach to significant nexus is sort of different to the Swank court's approach to the term significant nexus.

I think the Swank court, back in 2001, said - defined it in terms of a hydrologic connection. Is there a significant nexus hydrologically? I think Kennedy goes sort of beyond that and says, not beyond that, but in a different approach, saying it's an ecological connection. And so I think, based upon the Kennedy analysis, the government, I would agree, is going to have two make, at times, certain case-by-case or fact specific determinations on what's the ecological effect of filling a wetland or water - on the water quality of a navigable water. And that may not be so easy. I'm not so sure that that can be done as suggested by Justice Kennedy in a categorical way. I mean I think there's going to have to be a lot of analysis and discussion. I'm not so sure it's going to be easy for the government to define huge categories of wetlands and say, by definition, nothing more, by definition, these clearly are going to have an adverse impact on the navigable water. And I think there's going to be a lot of litigation as to what that means. But it does give lower courts options. You know, and it gives the government options as to defining what constitutes the jurisdictional water of the United States.

I think what is clear out of this opinion, if you're sort of going to look out what is clear out of it, I don't think that government can espouse the migratory molecule principal any further, which is sort of the rule.

That a molecule of water is inevitably going to migrate to a navigable water, so therefore per se all waters, all wet spots, all ephemeral ditches, all streams, are waters of United States because you can't disprove that. And so therefore there's a hydrologic connection. I think that is a clear result of this opinion. And I think it's going to result in a lot of, hopefully, perhaps some rulemaking in defining these issues. And I think that's the other message, how is this supposed to be resolved?

I think the chief's comment about the Corps throwing in the towel in the rulemaking was very telling in that regard. So this is sort of my view of where this thing comes out. And I think that one clear rule of migratory molecule principal no longer being applicable is absolute.

John Echeverria: I take it unless and until you get to rulemaking, the burden is on the government to show that the significant nexus test is met?

Larry Liebesman: And I think that's what the cases seem to say, the government has the burden of established jurisdiction. You know they can't presume and set forth certain primes and say we presume that jurisdiction exists.

It's now you, the permittee or the violator, must disprove that, overcome that presumption. I think the burden still rests with the government and they can't just categorically include these areas.

Richard Lazarus: Just a few thoughts. I mean I think the last 24 hours has been sort of a roller coaster, especially for many in the environmental community. What first scene, when it was being announced yesterday, as an absolutely nightmarish result for the Clean Water Act, has turned out upon closer analysis to be a far more nuanced result than first appeared.

Justice Scalia's opinion, I think, for the reasons Malcolm says, there's some stuff to be mined in it. There's some stuff to be mined in it and there's going to be a discrete area of cases, which in theory it might in fact be easier for the government to show. Because I think that's positive, that's benign. With that said, I'm very glad that's not the majority opinion of the court. There's not that much to be mined that I'd be just happy that was the majority as opposed to plurality.

In terms of the way the court's precedent works it's a plurality opinion. It has no more votes than Justice Stevens' dissenting opinion, which also has four votes. The only advantage it has is it agrees with Justice Kennedy on the judgment.

That's what makes it a plurality opinion. But in terms of what it says one has to look at Kennedy's opinion, one has to look at the overlap between Kennedy's opinion, the plurality opinion and Stevens' opinion.

That's how lower courts tend to take plurality opinions. They look for the overlap. They look for the narrow opinion of the concurring and they look for the overlap. And most of the circuit courts will look to overlap, looking to concurring and dissenting. They don't just look to overlap between the concurring and the plurality.

There's plenty of lower court precedent which says you look at the overlap more broadly than that. And that includes looking at the dissenting opinions, not just looking to the overlap, which there isn't much at all between Kennedy and the plurality.

Looking there to the overlap, there's a lot to be mined, much more than just looking at plurality. But it's going to take some good advocacy to persuade the lower courts that that's their role to do because it's sort of counterintuitive to look to something which is the dissenting opinion in addition to the one vote Kennedy rather than look at what's deemed the plurality because of his position, the judgment.

If you look though to Kennedy's and Stevens, especially as to Kennedy's, every single central proposition of the Scalia plurality is rejected, every single one.

Scalia says the water has to be permanent. Kennedy says it doesn't. Scalia says the water has to be continuous. Kennedy says it doesn't. Scalia says the water can't be intermittent. Kennedy says yes it can be intermittent.

Scalia says the wetland can be covered only if there's a continuous surface interconnection. And Kennedy, and that goes with Stevens' obviously as well as even broader, says that's not true. It doesn't have to be a continuous surface connection.

Scalia plurality offers this framework where ditches and canals and channels are really only covered if they're point sources indirectly. And that Kennedy and obviously that Stevens' reject that. They say that's not true as well.

The plurality ridicules the idea that you can have cumulative impacts sort of aggregate to make something sort of a desert sort of become actually a water of the United States. Kennedy's plurality embraces the idea that cumulative impacts can come up and reach a significant effect.

Scalia makes clear that Rapanos and Carabell should win on remand, although he sent back remands. Kennedy makes it absolutely clear that under his test Rapanos and Carabell can lose on remand. And the dissent may well be right.

So you put it together, there's a lot less to this. It's just going to be a lot of confusion for the lower courts and a lot of sorting out because Justice Kennedy, when push comes to shove, just couldn't affirm.

If you read his opinion he says, you know, actually on Rapanos they stated all the right factors. And if it could be based on all the findings they made it would meet my test, but the lower court only required it to be a hydrologic connection.

They didn't say it had to be a significant hydrologic connection. Even though the facts may show that in fact there is a significant hydrologic, it's just they didn't quite square it for me. And the same thing he did for Carabell. He said actually all of these facts here would meet my test, but they wrote it all in conditional. That it possibly, that it probably, and that isn't quite my test.

So the distance between Kennedy and the dissent was really quite small. But as a formal matter it was enough that he wasn't willing, at the end of the day, to affirm.

One other thing the Kennedy said was a huge divide between the two. Kennedy endorses the idea that the absence, the absence of a connection between a wetland and a traditional navigable water, the absence of a connection may provide the significant nexus. Completely counterintuitive. And Scalia went ballistic over that idea or the oral argument in the Carabell case. But Kennedy says no, the absence can prove the connection because wetlands serve as filters and as buffers and they protect traditional navigable waters that way. And Kennedy embraces that idea as well.

So there's a lot there, a lot there if the Corps actually decides to promulgate regulations in response, but there's a lot of litigation and a lot of advocacy that's required in the interim.

Virginia Albrecht: Yeah and I was going to, yeah, there is a lot there. And one of the things that's really interesting about this case is when you look at the positions that were advanced by the principal parties none of the principal parties got what they were advancing.

The government was advancing an any connection theory. That was rejected by a majority of the court. Rapanos was advancing all tributaries that are not navigable are out. That was rejected by the court.

On the Carabell side the government was advancing since this is really a wetland that's adjacent within the meaning of our regs that's all you need to know. You should be deferring to our regulations. This comes squarely within our regulations. That was rejected by the court. And what happened was it was sort of a, the court was really collectively coming up with a much more nuanced idea. And it's true that what I think what Scalia was trying to do was to come up with a bright line and he couldn't persuade Justice Kennedy. And he had this idea of a continuous flow. But what they had in common, between the plurality and Kennedy, was a concern about things that are less than continuous. And as a practical matter for the Corps in the field, this difference about things that do not continuously flow or do not continuously connect, that's a very significant issue.

Because when the Corps was operating as a practical matter under the any connection theory, basically it was if you're uphill and the navigable water is downhill you can assume gravity works, water will flow and there will be a connection. And that was enough to establish jurisdiction. What Kennedy is saying is that's not enough and the plurality is saying that's not enough. You've got to have a much more significant relationship between the remote wetland and the downstream navigable water.

Now how it plays itself out is going to be really interesting, but the common thread to me was a real interest - and when you look through the, in fact I didn't have time, but I think it would be interesting to do a word search and see how many times do they talk about regularity of flow or volume of flow or ordinary flow? Or the same thing with connections, regular connections. They talk about volume. They talk about frequency. They talk about amount. So they are really looking for more in the way to establish the relationship between the remote area and the traditionally navigable waters. But they couldn't agree on a test, so that's where we are.

John Echeverria: That's sort of a segue into the second question, which Virginia perhaps you can lead off on. And that is given this decision, where does the Army Corps of Engineers and EPA go from here? What are they likely to do? What should they do? What are the options available to the agencies in terms of making sense of these confusing opinions and providing some degree of direction for the public and the regulated community?

Virginia Albrecht: You know one thing is I kind of have a lot of sympathy for the court in trying to deal with these issues. When you read the popular press this morning it was like what are these guys doing? They haven't really decided anything. They haven't done anything. And there's really no coming to grips or recognition of the extreme difficulties of this extremely technical issue that we're dealing with, which is if you've got water and if you don't go to the ends of the earth to the water, then where do you stop?

That's a really hard question. But I think really to me the most practical interesting thing here is that although Rapanos in particular did not want to deal with the tributary issue at all and presented their case as if it's a tributary, if it's a non-navigable tributary, that's out.

The court is basically saying there are big questions about what's a tributary. And the whole discussion between Kennedy on the one hand and the plurality on the other, when they're talking about frequency of flow, volume of flow, amount, et cetera, all of those things are efforts by the majority to sort of - or by the court to talk about what is a tributary? And the Corps and EPA, as you know, or you may not know, don't have a definition of tributary. They disclaim jurisdiction over tributaries. And their idea of what a tributary is has morphed over the years. And it's very interesting, if you look back, the last time the Corps and EPA actually had a sort of major overhaul of the regs really was in 1977. There was sort of a minor tweak a little bit later, but it was 1977. And in those regs, which are still extant today, they just say we're going to take jurisdiction over tributaries, but they don't define the term tributaries. And what happened post-Swank, as many people know, is that the issue of what is a tributary then became central.

Because the issue was if you're a wetland, if you're close to a tributary the Corps would claim jurisdiction. The Corps adopted the any connection test and applied that in the field pretty - well, in different kinds of ways, but that was the idea.

I think now the court has squarely rejected the any connection test, has raised issues about frequency, ordinary, Justice Kennedy's opinion, in fact, talks about the Corps use of this term ordinary high watermark, which is a regulatory term that they use to define the limits of tributaries and also to define the existence of waters themselves.

Justice Kennedy calls that into question. So to me the central administrative issue that comes out of this is what is a tributary? And that is what the Corps and EPA are going to have to wrestle with.

We've seen that they're reluctant to do rulemakings. It cries out for a rulemaking. It cries out for a rulemaking. It's a technical issue. And they have the expertise to deal with this issue and the question is will they? But to me that's the central issue.

Lawrence Liebesman: Yeah John, let me sort of follow in Ginna's comments. I think would be agencies, the Corps and EPA, try to analyze this opinion and figure out what they may be doing in subsequent rulemaking, there are two different sort of aspects of that that are going to have to sort of overlap in this process. Well this is what I foresee.

One is looking at the plurality and trying to define tributary in terms of a hydrologic connection by permanence of flow, because I think Scalia laid out general principles but still kept the option to say it doesn't have to flow year-round, which is a very interesting finding.

Suggesting that you could have a continuous flow for six months out of the year, but you have a dry time of the year let's say in the southwest where it's dry in January and February. And that still might be a continuous flow.

So grappling with that, it's a hydrogeological issue, which is going to have to be dealt with. And if the court and EPA want to use that as a basis for jurisdiction, they're going to have to come to grips with that and try to define tributary in terms of what that means. And continuous flow is one element in which jurisdiction could be established.

The other, which I think is very significant, is how they're going to grapple with the Kennedy significant nexus in terms of the goals and purposes of the Clean Water Act and whether the agencies can come up with a categorical rule that will lump in all types of activity. And I think it's a very interesting quote towards the end of Kennedy's opinion where he says, "The court could, through regulations or adjudication," notice both, "choose to identify categories or tributaries that due to their volume of flow, their proximity to navigable waters or other relevant considerations are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for the aquatic system."

That's a loaded sentence. I mean there's a lot in that sentence to dissect how a rulemaking would unfold. And you know sort of suggesting here that the court could come up with a rulemaking that sort of readopts the any connection test potentially by establishing these broad principles, these broad ecological principles under the Clean Water Act.

My personal view is I still think if you analyze it there has to be sufficient evidence. And you know we, in our brief, actually posited going back to the Sweet Home concept, the proximate causation of foreseeability.

You know, in terms of whether an impact to a wetland could have a foreseeable effect on water quality, even now with no water, is a test that I think is something that in our view makes sense. There has to be some evidentiary connection.

You can't simply presume categorically that you've got let's say an ephemeral swale a mile and a half away from a navigable water, but it's part of a larger flood control issue of which if you filled it would arguably and maybe in a very tenuous sort of way affect the flood control capabilities of the navigable water.

You know and sort of create that brought presumption. In my view I don't think that can flow out of that analysis. But yet on the other hand the court is saying there has to be deference to how the Corps approaches this, that they have to have a certain amount of latitude in defining these categories of activity.

So it's going to be very interesting to see how these principles, ecological principles on water quality, those in the Clean Water Act, play into this nexus principle when the rulemaking unfolds. And I think inevitably you're going to have to grapple with these sorts of issues.

Richard Lazarus: Well, I think there's a near-term and there's a longer term. In the near term it's going to be a mess, right? I mean the Corps needs, obviously you've got three justices saying explicitly promulgates and regulations.

The chief justice has said it and it's suggested that there would be generous leeway in judicial review of it. Justice Stevens, Justice Kennedy is clearly saying it. Justice Breyer files a separate current opinion, a dissenting opinion just to point out that the Corps needs to step up to the plate. But as Larry and Virginia suggest it's not so easy to promulgate these regulations. I'm not going to make an excuse. I think the court should have done it. It was obvious after Lopez they should have done it. It was obvious after Swank they should have done it. But there are also some reasons why they haven't done it. It took, what, 60 to 80 single spaced pages in the Federal Register to find solid waste for the purposes of the Resource Conservation Recovery Act.Can you imagine how much more complex it might be to define navigable waters for the purpose of the Clean Water Act?

Both as a technical and scientific matter and as a political matter it's very hard. And it's going to be quite contested if the Corps ever finally tries to define that or EPA tries to define navigable waters and tributaries and the rest. But I think the court has made it quite clear they need to do so and the practical challenges of doing this case-by-case instead I think are going to compel the Corps to step up and try to promulgate some regulations.

Because Kennedy has made it quite clear if they do they can do things categorically that they can't do on a case-by-case. That they can draw, as Larry said, they can draw broad categories and as long as those categories, in a majority of those cases, it would meet the significant nexus test, the category is okay. So there's a big advantage to doing this on a categorical basis. And pretty much he lays out his own blueprint for how they do it looking at the test that Larry focused on there.

Malcolm Stewart: Let me just make a couple of observations first about the prior failure to do rulemaking and also about what might motivate the agencies to do it or not do it in the future.

First as to the prior abortive rulemaking, I think even if the Corps and the EPA had pursued the rulemaking and had ultimately adopted it, published regulations that adopted a meaningfully narrower view of the agencies' authority than the agencies had adopted previously.

If not at all clear that the agencies would have adopted the precise line that the plurality said was compelled by the statute. So we could have been in the same situation, having adopted a rulemaking of still being told that, no, the line you drew is a line and it carves some things out, but it still is inconsistent with the statutory text.

So while there would've been certain advantages to doing a rulemaking previously there's also an advantage in doing a rulemaking, if the agencies are going to do one at all, after the Supreme Court has given more nuanced guidance as to what it believes are the parameters of the agencies' choices.

The second thing I'd say about whether the agency should do a rulemaking now, I mean Richard says in the near term this is going to be a mess. And I think it's going to be a mess in a discrete category of cases.

That is in cases where you have wetlands that flow continuously into tributaries that in turn flow continuously to traditional navigable waters, there is no mess. The plurality has categorically held that those are subject to federal regulation without regard to a showing or absence of showing the ultimate impacts on downstream navigable waters.

Although the presence or absence of those impacts would be directly relevant to the question whether the permit should be granted. So if those are the bulk of cases that the EPA and the Corps are concerned with, conceivably, they could declare victory and say we got the majority of what we wanted.

With respect to the category of cases in which the flow of water, either from the wetland into the tributary or from the tributary into the traditional navigable water, is not continuous then things are more murky.

The corps can't rely on the plurality opinion. It's going to have to make something like the case specific showing that Justice Kennedy is talking about, unless and until it does rulemaking.

Now with respect to which of those categories of cases, that the clean one or the murky one is likely to be larger, I have no idea. That's not a lawyer's question. It's not something that you can figure out from looking at the opinions.

I know that there are people at the Corps and at EPA who have expertise in those technical questions and they can tell you, or least they would be able to reach a judgment about how great an impairment of the overall program would it be if we had to muddle through as to the non-continuous waters. But it's not something that lawyers can figure out. It's not something that anybody could figure out just by reading the Supreme Court opinions. So I think that the justices can give what guidance they want to give, but I think ultimately the determination of whether a rulemaking is wise or productive is going to turn on technical empirical judgments that are the province of people other than lawyers.

John Echeverria: Let's assume for a minute that the US Congress were able and willing to address the Clean Water Act, how might it productively change the Clean Water Act in order to clarify jurisdiction in this area?

Malcolm Stewart: I mean obviously from our standpoint it could clarify it by essentially codifying the prior regulatory definition that the Corps had up until this point. I mean saying that there are any number of ways in which Congress could clarify the applicable rule and some could be identical to what the government has previously espoused.

Obviously Congress could go all the way in the other direction and codify the rule that the Rapanos petitioners were asking for. So there's not inherently anything good or bad for the government or for regulated parties about the idea of legislation ...

Larry Liebesman: Excuse me, one thing that's anachronistic about the statue is the reliance on the word navigable waters. And the Supreme Court, I guess, has resolved that the word navigable waters has some significance, some legal significance.

At the same time I think from a point of view of water quality there's sort of a consensus on the court and in the general public that we're really not exclusively concerned with old-fashioned navigable waters.

So it seems as though if Congress were starting from scratch it would want to somehow step away from the term navigable waters.

Malcolm Stewart: I think that's right, I think if there were a clear conception - regardless of what policy choice Congress made, if there were a consensus in Congress about exactly where the line should be drawn, presumably it would use language other than the language that's currently in the statute.

On the other hand, the decision for Congress as to whether the statute needs amending, I think ultimately boils down to whether Congress is satisfied or dissatisfied with the current breadth of federal regulatory authority. And if it basically feels that the opinions in the case have carved out a workable compromise, then even though it's taken some time and agony to get there I don't think that the opacity of the statutory language would, by itself, be a sufficient reason to amend the law.

Richard Lazarus: The other thing I'd point out is that navigable is a problem. It's now also apparent from some text in the plurality opinion that people need to worry about, of the United States. Scalia did not ultimately have his opinion turn on that because he could turn it on the definition of waters.

He pointed out that navigable means something, waters mean something, of the United States means something. But he dropped a footnote in the case to make it quite clear that of the United States was going to be a further subset of things, not just be a navigable water.

It actually had to rise to a certain level of significance to be a navigable water of the United States. And so it turns out the word that I think for, until the Swank oral argument most people had assumed that the definition of navigable waters as waters of the United States, was expanding, making it clear that Congress would be more expansive.

The court, at least the plurality here, has taken the view that actually of the United States is another potential significant limiting factor in the definition of the geographic jurisdiction of the statute.

Virginia Albrecht: You know the other thing about congressional action is that what we're beset with right now is a highly technical kind of an issue. And it's not the kind of thing that lends, I mean Congress deals in generalities like navigable waters and waters of the United States. And the idea about how much flow you want to have or making a distinction between ditches on the one hand and sloughs on the other and swales on the other and desert washes and erosional features and all that sort of thing, that's the business, usually, of administrative agencies.

Obviously Congress has the power to make policy and they're supposed to be making policy, but when you get down in the details where we are now, I'm not sure that they're the right ones to deal with the issue that we've got in front of us.

The other thing that's interesting is that Kennedy's opinion, as long as Congress would be acting - well it would be interesting if Congress went back and they chose to act under an effect on commerce, affecting commerce problem, the commerce clause, then they would be in Lopezland and have some limitations there. And if instead, they said, oh, we're going to avoid that little problem and we're going to go on the channel's power, I think Kennedy is signaling a pretty strong idea that at least when you're operating under the channel's power that he's going to look for significant nexus.

So both of those kinds of ideas would be something that Congress would have to think about if it using the commerce power and there would be other, you know, depending on where else they were operating. So those are factors to consider.

Larry Liebesman: Following up on Ginna's points, which I think are very well taken, we're dealing with a very hypertechnical question. And I'm not sure that just a simple congressional fix addresses the problem because I think this whole issue must be looked at in the broader context.

I mean I think Scalia hit the point about the Clean Water Act and, you know, retains a lot of authority for state and local governments. You know that's clear and that federal jurisdiction is not plenerate, you know that there's certain aspects in terms of water pollution control that's reserved at the state and local level. And that's right in the statute. That's in fact how the cooperative federalism has worked. And you know his theory, and very strong in his opinion, is that by adopting the approach taken by the Corps in these cases you essentially federalize everything.

You know that whole provision about what to retain for state and local authority becomes a nullity, you know, and then you're writing out that provision of the Clean Water Act. And that's an important context of when you look at legislative reform.

Do you go in and just sort of do a little piecemeal shot at fixing something which runs counter to the purpose of the act? Do you look at things more comprehensively? I mean I've worked in this program for many years and there are a lot of problems with the 404 program in terms of a wetland's protection statute and trying to engraff that on the Clean Water Act.

Do you do it in the piecemeal or are you going to try to come up with something that deals with these problems, reserves authority for state and local governments, tries to come up with things that make sense?

A lot of states have wetlands protection programs. The state of Maryland has a non-tidal wetlands protection statute. It says the goal is no net loss. They went through the front door and devised a program focusing on wetlands.

I don't believe the Clean Water Act was ever intended to be a wetlands protection statute per se. It focused on water quality. And so those are very complex issues that I'm not sure, and frankly I think would be a mistake to try to solve this problem in a rifle shot kind of amendment and not look at the context of the broader purposes of the Clean Water Act in terms of protecting wetlands.

John Echeverria: We turn to our final question, which was where does the Supreme Court go on environmental law from here? What has changed? What are the signals?

Richard Lazarus: Well, I think from that perspective this decision should be quite troubling to a lot of people in the environmental community and to the federal government. Scalia's opinion, the plurality opinion, has got to be the one that people focus on the most in terms of possible broader implications, where the court might be going.

Because while you can actually read it, as Malcolm says, and mine it for some good stuff to try to minimize it, it was written with a tone and a style that was more likely to be over read by the lower courts rather than be under read by the lower courts.

He was not trying to write this in a way to make it clear where his limiting factors were. Instead the opinion read as though it was doing more than it was accomplishing, rather than less than it was accomplishing. And the lower courts tend to over read Supreme Court opinions written in that way and Justice Scalia knows that and he wrote it in that way. It reads like a very extreme opinion, even if it can be narrowly read.

It starts out with this quite significant condemnation of the Corps and the wetlands program. Referring to the Corps as despots, citing the cost ...

Virginia Albrecht: It isn't enlightened.

Richard Lazarus: Well this enlightened, I figured the chief put that one in. But at least - and it emphasized all the costs of it, none of the benefits, all of the costs, all the burdens, all the sort of difficulties of it for land owners and property owners. You know referring to, I think they got some of those articles out of Virginia's amicus brief.

Virginia Albrecht: Yes.

Richard Lazarus: You know, no particular notion of peer review and economic or scientific studies, Natural Resource Journal notwithstanding. And it's all sort of stated as fact. It's a very one-sided presentation suggesting sort of this immense land-use regulation.

It's all sort of the water act creeping and taking order everything, all in the negative. It refers to the statute as tedious in a footnote. This is a statute which a lot of people have celebrated for decades for its accomplishments.

You have no sense of that at all, that there's anything good about the statute or what it's accomplished. It's written in sort of a mocking tone towards the Corps of Engineers and the statute and some of the Corps application of the statute.

The patent opinion is written less to me like something I would expect to read in the U.S. reports, than something I would expect to read in a fund-raising letter or an op-ed piece in the Times, Post or Wall Street Journal rather than a plurality opinion by the Supreme Court justices in the kinds of things that citing and the basic tone of it.

It's the kind of opinion I wouldn't have expected anyone to sign, even Justice Scalia. And I see Justice Scalia signing onto it. I see Justice Thomas signing onto it. I see two new justices signing on to it, the Chief Justice and Justice Alito. And as Malcolm, I think, hinted, there's some incongruity between the Chief Justice's separate concurrence and his signing on to that plurality opinion because there's very little in that plurality opinion which suggests that the Corps of Engineers could've done anything after Swank which would have satisfied the plurality at all. And the fact that the two new justices signed on to the opinion, and not just the bottom line, you could have written that opinion in a way which I might not have liked the result, but a narrow opinion with a different tone and a different character to it. But this one was really over written in a very extreme, I thought, fashion. And to have the two new justices sign on to it, I think, sends out some serious concerns and warning signs about where the court might be going.

I don't think O'Connor would have signed on to that opinion. I'm not even sure Rehnquist would have necessarily signed on. These were the kind of opinions you saw, at most, just Scalia and Thomas signing on to.

Like the Public Utility District No. 1 case, section 401case, all you saw was Thomas and Scalia signing on to those things. You didn't see the rest of the court doing it. So I think that's a significant concern if the two new justices really are on that bandwagon.

I'm surprised that they joined it and didn't go elsewhere. It would've been much more consistent with things that people have said and done to have signed on to Kennedy's concurring opinion instead of with the plurality.

Virginia Albrecht: Can I?

John Echeverria: Please.

Virginia Albrecht: One thing I think is interesting, it was a passionate opinion. There's no question about it. And one of the things to think about is that this is in the background when only four years ago, five years ago they wrote an opinion which they thought meant something. And what has happened is that through a concatenation of events, which we don't have time to revisit now, that opinion kind of found itself on the shelf. And I think that a lot of that may have made its way into the opinion.

The other thing, I want to make the point because you may argue about the tone, but it is a legitimate concern of people about the burdens that are imposed by the 404 permitting process. And I think part of the reason to put - and I will say our brief was cited by both the dissent and the plurality.

So we felt equal opportunity. But I think it's a very fair point to talk about what are the costs of this program? And what are the impacts on society at large? Because before it used to be people would say, well you know, most people get their permits. What are they whining about? And the fact is that we know from the stats that the Corps puts out that most permits are issued, although they're issued in different ways from what the person originally asked for. And the process of getting the permit is very long and costs a lot of money.

It's a very cumbersome and expensive process. And that process is not borne really by the applicant, I mean the expensive of that and the cost of that isn't really borne by the applicant. It's borne by the applicant's customers.

If you're the Department of Transportation and you're building a highway and you spend three years getting your 404 permit, which the Washington Department of Transportation has done a very interesting study about the costs of building highways in the state of Washington and the amount of money that is consumed in the highway budget for wetlands, getting wetlands permits.

It's a very substantial amount of money. And society can make that choice, and it can be a good choice, and there's no doubt that many wetlands are very important. But it has costs and to the extent you're spending it on that you can't spend it on school teachers or other things.

So I think there's one thing about the tone in which the opinion was written, but these concerns about costs are legitimate concerns. And that you want to get some proportionality in the program.

Larry Liebesman: I think there's two things ...

Richard Lazarus: One is there's no question that there are legitimate concerns, it was the lack of balance, sort of discussing the act that I found troublesome. And the fact that the tone apart from the concerns, the sort of mocking disdainful tone of the statute. And then of course there's the other question one has to ask and that is so much of the discussion of those kinds of concerns suggest that this is a policy decision, that there's something wrong with this statute and it's not a wise statute on sort of a cost analysis. And that's why I we should read it in a certain way. And Scalia made it quite clear in American Trucking v. Whitman that you don't do that when you read a statute.

Virginia Albrecht: Can I just ...

Richard Lazarus: I'm done.

Virginia Albrecht: No, no, I'm not. No, but I think ... I lost my thought. You remember my thought?

Lawrence Liebesman: I've got some thoughts.

Virginia Albrecht: He's got a thought.

Lawrence Liebesman: I've got some thoughts. You know what struck me, what's so interesting is Kennedy's role in future environmental cases. And as I was reading Kennedy's concurrence I kept thinking about Sweet Home and Justice O'Connor and the role that she played in Sweet Home and sort of carving out this reasonable middle. And those of you who have - I assume most of you are familiar with the Sweet Home case dealing with the definition of a take on the Endangered Species Act. But Justice O'Connor ...

Virginia Albrecht: Let's have a show of hands.

Lawrence Liebesman: Well, no show of hands, but anyway Justice O'Connor I thought carved out a very reasonable approach. That in my view was very true to the ESA and yet required a certain amount of evidentiary connection between an impact, an activity and impact upon a species and habitat and applying the principles of proximate causation of foreseeability.

She was trying to carve out sort of a middle ground. And when I was reading Kennedy I was saying Kennedy seems to me to be the future O'Connor in these environmental cases because here you had Scalia who started out with a very textural analysis. And frankly, you know, while I was somewhat taken back by his tone I wasn't really surprised by his theory because it was a textural theory. I mean everything was, you know, the language, the navigable waters, what does that mean?

Starting out in this literal textural way and then saying the Corps has been way off the reservation in terms of what this language means. And then he went on this whole litany about how the interpretation and application of the statute went far beyond a reasonable textural analysis of what navigable waters means.

So I wasn't totally surprised by his theory. I think his tone is very, very, you know, somewhat off the reservation in terms of how he was throwing arrows. But you look at Kennedy, you know, try to carve this out.

Now I think the interesting thing of Kennedy that I think is one of the key hidden things is his approach about significant nexus not necessarily requiring a hydrologic connection, you know, in some instances.

Which I think is a very interesting sort of statement to say you could have this sort of foreseeable impact on navigable waters from an activity without having a discernible hydrologic connection. And I'm drawing an analogy back to O'Connor and Sweet Home, you know this foreseeability context. And this is where I think in the future I can see him, I mean he's sort of carved out this middle ground on maybe the two extremes.

You know Stevens taking sort of a total deference approach in terms of the minority, the Scalia, the textural analysis, so is he going to be the broker in these environmental cases in the future? Trying to sort of carve out a reasonable middle ground sending a signal to the agencies about how to balance the language of the statute with the overall goals of what Congress had intended.

John Echeverria: The case that came to mind to me was the Palazzolo case in which Justice Scalia harshly criticized Justice O'Connor's views. And there's sort of a parallel in this case in which one of the striking differences between the dissent and the plurality is the dissent treats Justice Kennedy with enormous respect and deference although expressing disagreement.

On the other hand, Justice Scalia it seems to me goes out of his way to point out all of the differences, indeed to possibly offend Justice Kennedy. And in the Palazzolo case that the evident intention on the court over one of the takings issue led, subsequently to the Tahoe Sierra case in which Justice Stevens succeeded in bringing Justice O'Connor into his point of view. And just going forward, given the current composition of the court, I would bet that Justice Stevens would have an easier time enlisting the support and cooperation of Justice Kennedy in the next case than Justice Scalia would.

Malcolm Stewart: Just a, I mean a couple of thoughts. I guess I'm less troubled than Richie is by the implications of this decision for other environmental cases. I agree that the tone is unusual for what presumably, although we don't know, started out as the majority opinion. But clearly this was a case that stirred the passions of the court. I wasn't in the courtroom yesterday, but apparently Justice's Scalia, Kennedy and Stevens all announced their opinions from the bench, which is something I've never heard of before. And obviously Justice Scalia, as a writer, tends at times to have a more vigorous tone to his opinions than some of the other justices might.

As far as the new justices joining the opinion, I think the ethic on the court is so strong that when somebody has been assigned to write the opinion for the court a justice in the majority is not going to refuse to join the opinion unless he or she has serious problems with the reasoning.

I don't think the fact that the Chief Justice and Justice Alito joined the opinion means that it's the opinion that they would have written or that they agree with all of the rhetoric. And whatever the opinion might cause people to suspect about the policy preferences of the justices who joined it, the reasoning was grounded in the text of the statute, or at least that was the line of argument. And I think it would be very difficult, even if the plurality opinion were an opinion for the court, I think it would be very difficult to cite it for any useful proposition of law outside the context of the Clean Water Act.

The other thing I would recur to is that it's not, the plurality opinion obviously is not wholly or even almost wholly favorable to the government. But I do think that the position that even the plurality staked out is much closer to the government's position than it is to the position that was advocated by the Rapanos petitioners. And the fact that the plurality took a lot more pages to criticize the government than to criticize the Rapanos petitioners, I think more than anything else is a function of the fact that the Rapanos petitioners rule had no supporters on the court.

There was no one on the court to respond to with respect to that aspect of the case. And I think that the reason that the plurality goes on at length about the flaws in the government's position is more that there were other justices who were advocating that view.

Richard Lazarus: Just a few thoughts, one is I think that one might overplay the notion that the plurality really relied on the text. I mean I think that they focused, I think, purportedly on the text. I think they ignored the context of the words in the statute as they've been interpreted and administered over decades. And I don't find it a very persuasive textural analysis of it. In terms of Justice Kennedy's role here, it's interesting, there is some significance here. Kennedy, since he's been on the court, actually has been in the majority in every single environmental case, except one, and that's Alaska EPA. He has been the swing vote in those cases, much more than O'Connor was the swing vote. It was Kennedy.

Alaska EPA was an interesting case. That one he wrote the very vocal dissent. Clean Air Act case involving whether EPA can second-guess a state determination of best available control technology and a PSD, prevention of significant deterioration area.

He wrote a very loud dissent on federalism grounds about the disrespect this EPA second-guessing showed of states under the environmental statutes. I was concerned for that reason what he might do in this case. And it was one of the few questions he asked of the Solicitor General oral arguments was how did the Solicitor General square on his position, the government's position in this case, with this Clean Water Act's objective that the states retain primacy over water quality issues?

When he asked that question it made me worry that Kennedy might have a problem here like he had in Alaska EPA and he didn't. If you read the opinion, he deals with that issue, the plurality deals with the issue. And so I thought that was very good news to me for the future. Malcolm raises one other issue which is just worth some speculation and that is he said assuming this was originally a majority opinion, Justice Scalia's.

That's unclear. It's unclear exactly what the makeup - what happened after February 21 when this case was argued. Whether Scalia originally had the majority and lost it or whether Kennedy originally had the majority.

Linda Greenhouse, in today's New York Times, suggests that as a possibility, that this is a situation where Stevens was the senior justice in the majority. He assigned it to Justice Kennedy, which is exactly what he would've done. He's very strategic that way.

He would assign it to Justice Kennedy. And Kennedy wrote it and then Kennedy, as he's been known to do, not known, but as is strongly suspected based on research that's been done in other cases, that he may have just not been able, at the end of the day, to affirm the judgment. And so he moved over, creating the 4-1-4. There are ways to look at the way his opinion is structured, the way Scalia's opinion is structured. I don't know, to suggest that happened, but it's not clear.

Malcolm Stewart: This is really inside baseball stuff, but the two bits of evidence that I would point to in response to that are first, apparently, I haven't kept track, but I've been told that Justice Scalia hasn't been the author of any other majority opinion since ...

Lawrence Liebesman: But either had Kennedy.

Malcolm Stewart: February. The other thing is that the comment in the Chief Justice's concurrence to the effect that it's unfortunate that there was no opinion for the court, makes a lot more sense if you think that the chain of events was Justice Scalia was writing for the court and Justice Kennedy refused to join. But if you think the Justice Kennedy was writing for the other five and the problem was they didn't switch.

Lawrence Liebesman: And the other factor which may be true, is that if the chief had originally given Scalia the opinion assignment that could well explain why he'd be very reluctant to not sign on to it. If you've actually given someone the opinion assignment it takes a lot to say I gave it to you and now I'm not going to join.

It's a different game if you didn't actually give him the assignment, although actually he would've assigned the dissent too, because they actually do it both ways.

[End of Audio]

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