Obama admin appears headed for Supreme Court loss

By Robin Bravender | 03/30/2016 01:19 PM EDT

Supreme Court justices appear likely to smack down the government in another major clean water case.

A vast majority of the justices today seemed dubious of the government’s arguments that landowners shouldn’t be able to challenge certain government decisions about water permits in court.

The lawsuit centers on North Dakota peat mining company Hawkes Co. Inc., which wants to challenge a government determination that its mining plans would require costly Clean Water Act permits (Greenwire, March 28).


The broader issue in the case is whether the Army Corps of Engineers’ "jurisdictional determinations" about whether permits are required are "final agency actions" that are subject to courts’ review. The government argues that they’re not, but property rights advocates and industry contend that the decisions hurt landowners without giving them proper recourse.

Being forced to go through the permitting process or risk breaking the law "sound like important legal consequences," said Justice Stephen Breyer, a Democratic appointee.

Justice Sonia Sotomayor, another Democratic appointee, told the attorney representing the government to assume the court disagrees with him. She added, "What’s the narrowest way to write this that the government would like?"

Chief Justice John Roberts and Justice Samuel Alito, both Republican appointees, focused on a government memorandum, suggesting that it was evidence the corps’ determinations are viewed as binding. They indicated they’d be inclined to find that the determinations do indeed constitute final agency actions.

Roberts noted that landowners put themselves at great "practical risk" if they disagree with the corps’ determination and decide to discharge without a permit.

Many of the justices appeared sympathetic to the difficulty property owners face in determining whether the Clean Water Act applies to their properties.

Justice Anthony Kennedy, another Republican appointee, said the Clean Water Act is "quite vague in its reach," adding that it is possibly "unconstitutionally vague."

Justice Ruth Bader Ginsburg, a Democratic appointee, said going through the permitting process can be "very arduous and very expensive."

Part of the justices’ questioning centered on how formal the process now is, suggesting they may attempt to open the door for the corps to revise its process to make it less formal.

Justice Elena Kagan, a Democratic appointee, appeared concerned with how a broad decision rejecting the government’s arguments could impact informal guidance from other agencies.

She stated concerns that allowing judicial review of such decisions would suggest that agencies "should draw back" and might make advice from agencies "less accurate and less helpful," citing examples of informal advice given by other agencies. "This appears to happen all over the place," she said.

Kagan called the case "very difficult," wondering where "sensible lines" could be drawn.

A decision in the case, U.S. Army Corps of Engineers v. Hawkes Co. Inc., is due before the court’s term ends in June.