Kennedy comments suggest hot water for WOTUS rule

By Robin Bravender | 04/01/2016 01:12 PM EDT

AUSTIN, Texas — Justice Anthony Kennedy made waves in environmental law this week when he called the Clean Water Act "arguably unconstitutionally vague."

For critics of U.S. EPA’s new Waters of the U.S. rule, or WOTUS, that was a welcome sign that the conservative justice who’s often the high court’s swing vote might be willing to help strike the Obama administration’s contentious water regulation.

"This is not an offhand comment," Mayer Brown attorney Tim Bishop said at an environmental law conference here today. "Saying ‘arguably unconstitutionally vague’ is not something a justice says at argument in an offhand or careless way."


Bishop, who’s representing industry groups challenging EPA’s rule in court, said he saw Kennedy’s comments signaling how he leans in litigation over the rule that’s still pending in lower courts but is widely expected to wind its way to the high court.

"I would like to say that means WOTUS is dead," Bishop said, but it remains unclear who will fill the seat left vacant by the death of Justice Antonin Scalia. "We have a 4-4 court, and we don’t know who the ninth member will be when the WOTUS rule eventually gets to the court, so we can’t say that yet."

Kennedy’s remarks were also ironic, Bishop said, because "it’s Kennedy who is responsible for all of this, by writing his opinion in Rapanos."

In 2006, Kennedy penned a stand-alone opinion in the case Rapanos v. United States, where he set criteria for when a stream or wetland warrants federal protection. At the heart of his approach is the notion that waters must have a "significant nexus" to navigable rivers and seas in order to qualify for federal protection (Greenwire, June 5, 2015).

"He is clearly having regrets," Bishop said today. "He is very, very concerned about what he wrought in Rapanos and what has now come home to roost in the WOTUS rule that appears to embrace most water in the country."

EPA, for its part, contends that its new regulation — which is also known as the Clean Water Rule — will help make it clearer which waters are covered under the Clean Water Act, making the permitting process easier and faster for businesses and landowners.

Kennedy’s comments came as the court heard oral arguments Wednesday in a case over when landowners can go to court to challenge government determinations about water permits.

Lisa Jones, deputy assistant attorney general at the Department of Justice’s Environment and Natural Resources Division, attended the oral arguments in that case, U.S. Army Corps of Engineers v. Hawkes.

She said Kennedy’s comments about the Clean Water Act were likely "somewhat a surprise" for Deputy Solicitor General Malcolm Stewart, who argued the case on behalf of the government.

Jones also got a sense of déjà vu, she said, since the arguments bore some similarities to the case Sackett v. EPA, another case involving property owners where the court ruled 9-0 against EPA and in favor of landowners.

"I’m not going to give you any predictions," Jones said today at the conference hosted by the American Bar Association. But "it did harken back to the days of Sackett, and there was a lot of animosity in discussing the issues."

‘Dagger in the heart’

Bishop, who represents industry in many high-profile water cases, was recently disappointed when the high court refused to hear an appeal in a case that sought to topple the Obama administration’s cleanup standards for the Chesapeake Bay.

Bishop called that decision a "dagger in the heart." He added, "I thought we really had a good chance in Chesapeake" that the court would take on the case.

"I regard it as the first casualty of the passing of Justice Scalia," Bishop added. It takes the votes of four justices to agree to hear a case, and the court’s conservative wing may previously have been interested in hearing such a case.

But beyond getting the four votes needed to hear a case, the justices are "thinking about how will this case come out on the merits — can we reach a majority decision here?" Given the court’s history of splitting 5-4 on Clean Water Act cases, "I think the court might have thought it’s going to be hard to put a majority together," Bishop said.

‘April fools’

Kirsten Nathanson, a partner at Crowell & Moring, kicked off her remarks to environmental lawyers today by asking whether they’d heard the big news about President Obama’s Supreme Court nominee, Merrick Garland.

"I hope you all enjoyed or at least took interest in the news this morning that [Senate Majority Leader] Mitch McConnell has changed his mind and is going to be taking a meeting with Merrick Garland and moving forward with a vote," she said.

After a moment of silence from the audience, she added, "April fools!" to laughter and applause.