This article was updated Feb. 7 at 4:40 p.m. EST.
The next big Supreme Court decision affecting the scope of the Clean Water Act may come from an unlikely source: a plaintiff’s fight to reduce a prison sentence for drug and weapons possession charges.
On its face, the case currently pending at the Supreme Court asks justices to resolve whether criminal plaintiffs can request lighter prison sentences in response to changes in federal sentencing guidelines.
But Hughes v. United States also centers on how lower courts interpret fractured Supreme Court decisions in which five of the court’s nine justices fail to come to an agreement.
Some experts think the court’s answer could provide some clarity on an issue that has muddied water law and policy for more than a decade: How should lower courts and the federal government interpret Rapanos v. United States, an infamously murky 2006 decision on Clean Water Act jurisdiction?
"What the Supreme Court does in Hughes is going to potentially go a long way toward answering the question," said Stephen Samuels, a former Justice Department attorney.
Parties involved in high-profile Clean Water Act legal battles are paying attention.
Last month, 10 trade associations involved in the massive litigation over the Obama administration’s Clean Water Rule, which aimed to provide clarity on which wetlands and streams receive automatic protection under the law, filed an amicus brief in Hughes.
Mike and Chantell Sackett and Duarte Nursery filed their own joint brief in the criminal case with the backing of the conservative Pacific Legal Foundation.
The Sacketts won a major 2012 Supreme Court case that gave landowners facing potential enforcement actions under the Clean Water Act the ability to seek judicial review before being forced to comply. California farmer John Duarte has been fighting an enforcement action for plowing and recently settled his case with the government.
"The people who have filed amicus briefs as well as the United States have been litigating that issue ever since Rapanos," Samuels said.
In that 2006 case, Michigan landowner John Rapanos sought to develop property that was designated a wetland. Because he hadn’t applied for a permit, U.S. EPA tried to bring civil and criminal enforcement actions.
The Supreme Court vacated lower court decisions that the federal government had jurisdiction over the wetlands at issue. But justices differed in their reasoning.
Joined by the court’s conservative wing, the late Justice Antonin Scalia issued a plurality opinion — meaning it did not receive five votes — arguing that the Clean Water Act only applied to "navigable waters" connected by a surface flow at least part of the year.
Justice Anthony Kennedy, on the other hand, issued a concurring opinion stating that waters must have a "significant nexus" to navigable rivers and seas, including through biological or chemical connections.
Following the 4-1-4 split decision, the George W. Bush and Obama administrations relied on the Kennedy interpretation in guidances and enforcement actions. Most recently, the Obama administration based the joint EPA-Army Corps of Engineers Clean Water Rule — which is also known as Waters of the U.S., or WOTUS — on Kennedy’s significant nexus test.
Now all sides await the Supreme Court’s next move.
Hughes v. United States
The criminal sentencing case pending at the Supreme Court also involves a 4-1-4 decision.
In 2013, the United States charged Erik Hughes, whom court documents describe as a "father whose drug ‘addiction has controlled him for a large part of his adult life,’" with federal drug and firearm offenses. He entered a plea agreement admitting to conspiracy to possess with intent to distribute at least 500 grams of a mixture containing methamphetamine and to being a felon in possession of a firearm.
The plea agreement imposed a prison sentence of 180 months. But after a judge accepted the agreement, the U.S. Sentencing Commission shortened the recommended sentence for Hughes’ charged crimes. He then asked for a sentence reduction.
To determine whether to grant the reduced sentence, a district court judge turned to the fractured 2011 Supreme Court opinion Freeman v. United States. In that case, the high court held that a defendant might be eligible for retroactive sentencing relief.
But, as with Rapanos, justices differed on the reason why.
This time, it was Kennedy who issued the plurality opinion. Joined by the court’s liberal wing, Kennedy stated that a plea agreement is subject to relief if the judge’s decision to accept the agreement was based on federal sentencing guidelines.
Justice Sonia Sotomayor issued a concurring opinion in which she wrote that retroactive relief depends on the plea agreement itself, not what the judge thought or said at the time.
Both the district court and the 11th U.S. Circuit Court of Appeals determined that Sotomayor’s concurring opinion controlled their actions. They concluded that her test hadn’t been satisfied and refused to reduce Hughes’ sentence.
Hughes appealed to the Supreme Court, and justices agreed in December to hear his case.
The high court will revisit the underlying issues with sentencing that were at stake in Freeman, as well as examine whether lower courts need clearer guidelines for interpreting fractured Supreme Court decisions.
The topic has heightened importance because the chances have grown that the Supreme Court will issue a plurality decision on a divisive subject.
Between 1801 and 1955, the court issued only 45 plurality decisions. But between 1953 and 2006, when Rapanos was decided, the court issued 195 fractured rulings, according to David Stras, who was just confirmed to the 8th U.S. Circuit Court of Appeals, and James Spriggs, a professor at Washington University in St. Louis.
"Many of the Supreme Court’s most important decisions, such as those involving executive power and the constitutionality of abortion regulations, are decided by plurality decision," the duo wrote in a 2010 paper published by the University of Minnesota Law School.
When faced with a plurality opinion, lower courts generally turn to the 1977 Supreme Court case Marks v. United States, in which justices considered how to interpret a 1966 split decision over whether obscenity deserves First Amendment protection.
In Marks, justices directed lower courts to follow whichever opinion represents the "narrowest grounds." Lower courts have since ruled that, for an opinion to constitute the narrowest grounds, it must be a "logical subset" of the other opinions.
Those terms have been the subject of intense debate in the lower courts.
"What you get is continually propagated confusion over a case that the court, by taking it in the first place, determined to be important enough to have national authority on," said Tony Francois, an attorney with the Pacific Legal Foundation.
‘Missed the mark’
Farm and industry groups say the confusion about handling fractured opinions is evident in lower courts’ struggles to define the reach of federal regulators over wetlands and streams after Rapanos.
Marks "has proved a murky standard for applying Rapanos and similarly divided decisions," the coalition of 10 farm and industry challengers to the Obama administration’s Clean Water Rule said in their amicus brief last month. Rapanos, they added, "has — it is no exaggeration to say — wreaked havoc in courts and agencies and among regulated communities."
The circuit courts have been divided about how to apply the decision.
The 11th Circuit has held that only Kennedy’s opinion applies, while the 7th and 9th Circuits have ruled that Kennedy’s standard is controlling but have left open whether Scalia’s opinion could also be applicable. Other circuits, meanwhile, have held that the federal government can establish jurisdiction over wetlands under either Kennedy’s or Scalia’s views. No circuit courts have ruled that the government can rely on Scalia’s opinion alone.
Patrick Parenteau, an environmental law professor at Vermont Law School, said the lower courts have generally read "narrowest grounds" in the Clean Water Act context to mean "least restrictive of federal jurisdiction."
"Rapanos reveals that the Marks test doesn’t work because it doesn’t answer the question, ‘What does narrowest ground mean?’" he said.
The Pacific Legal Foundation put it this way in its brief on behalf of the Sacketts and Duarte: "The circuit courts have missed the mark with Marks."
"As simple as that rule sounds," the group said, "history has shown it to be difficult to apply, resulting in numerous splits of authority among the lower courts when interpreting fragmented decisions."
In the Clean Water Act context, PLF added, having a ruling that allows agencies and courts to follow two different legal tests "creates uncertainty among the regulated public and legal practitioners. It allows the government to play legal games with alleged violators of the [Clean Water Act]."
Hughes similarly argues that the fractured 4-1-4 decision in Freeman doesn’t fit into the "narrowest grounds" framework. His attorneys said: "This court has never explained what to do when the opinions are not narrower or broader, but just different."
Some experts think the narrowest grounds test should be abandoned in favor of a simple majority rule. But others have pushed back, saying abandoning it would create guidance problems for lower courts and undermine the motivation for justices to reach majority opinions.
Keeping Rapanos forefront
Justices will hear arguments in Hughes in March.
If justices do want to use the case to say something broader on interpreting split decisions, the Clean Water Act litigants want to make sure Rapanos is front and center on their minds.
In their brief, the farm and industry groups — which includes the American Farm Bureau Federation, American Petroleum Institute and National Association of Manufacturers — offered a wish list on how the high court should approach clarifying split decisions. Their suggestions would potentially cast doubt that the Kennedy significant nexus test is controlling.
They want the court to stipulate, for example, that a concurring opinion is controlling only if it offers a rationale that a majority of the court would accept, which, as they say, "was decidedly not the case in Rapanos."
The Pacific Legal Foundation likewise noted in its amicus brief that lower courts should be "particularly cautious" in finding that a single justice’s opinion is the holding of the Supreme Court. And it wants the court to be clear that "narrowest" doesn’t mean the interpretation that favors more government intervention.
"What we want to make sure is that, in looking at how to apply the 4-1 decision in Freeman in the Hughes case, the court is also thinking about how that would work with some of their other high-profile split decisions," Francois of PLF said. "So we used the Rapanos case as another example of how widely the lower courts have struggled to interpret lower court decisions and apply them."
‘Most important issue’
Water law experts are also keeping an eye on whether the Supreme Court says anything in Hughes about the treatment of dissents.
"The most important issue before the Supreme Court is what is the role of dissenting opinions, especially when lower courts are trying to interpret fractured decisions," said Samuels, the former DOJ attorney.
Joined by the court’s liberal wing, former Justice John Paul Stevens wrote in a dissent in Rapanos that the federal government would have jurisdiction over any waters if either the Kennedy or the Scalia test were satisfied.
A number of the lower courts have considered the Stevens dissent in their efforts to wade through what the Supreme Court meant in Rapanos.
If the high court were to rule that dissents shouldn’t be taken into account, that would make it more difficult to argue that Kennedy’s opinion is controlling, because it would become "more difficult to use the dissenting opinion to say that five justices would find jurisdiction when there’s a significant nexus," Samuels said.
Both amicus briefs filed last week by Clean Water Act litigants urged the Supreme Court to clearly state that lower courts shouldn’t consider dissents.
"The use of a dissent by a lower court to determine what the law is — that goes against just the very principle that the rulings of the Supreme Court are the ones that the majority of the court endorses," Francois said.
Implications for Trump, other cases
Along with wanting to clear up the long-standing legal question, the Clean Water Act litigants would also like to see the high court rule in a manner that would ease the way for the Trump administration to issue a replacement for the Obama administration’s waters rule.
The Trump administration has said it would base a new rule on Scalia’s views in Rapanos. Such a rule would likely cover fewer bodies of water than the Obama administration rule based on the Kennedy significant nexus test.
Hughes could help provide legal cover for that approach.
"If in Hughes the Supreme Court says it’s the plurality opinion … then that really gives EPA the ability to adopt the Scalia test in the replacement rule," Samuels said. "If the court says, ‘No, you have to basically apply the plurality and the concurring opinion and maybe take into account dissenting opinions,’ and EPA comes out with a rule that’s just Scalia — does it really limit their ability to take a narrow view of the Clean Water Act?"
The United States has yet to submit its merits brief in Hughes, but Justice Department attorneys did not previously mention the water case in responding to the petition.
"What EPA, I assume, wants out of Hughes is a decision that allows them to apply Scalia by itself," Samuels said. But, he added, "the United States has always opposed, and no court has adopted, a view that Scalia is the only surviving test in Rapanos."
In future litigation over the Trump administration’s Clean Water Act rule, he predicted: "There will be a lot of briefing in cases challenging the replacement rule as to what Rapanos means, and then what Hughes means."
Along with weighing heavily in potential litigation over the Clean Water Rule’s replacement, the sentencing case could also affect other pending water cases in the lower courts.
A panel of judges in the 9th Circuit recently endorsed Kennedy’s views in a ruling upholding a criminal conviction for a Montana man for digging ponds and diverting a creek on his land and in the neighboring Beaverhead-Deerlodge National Forest. But the court said it would wait to issue the mandate cementing the decision until the Supreme Court rules on Hughes.
Despite the attention on Hughes in water law circles, it’s also possible that the Supreme Court may not say anything that applies to the Clean Water Act, leaving litigants to continue to wade through the post-Rapanos morass.
Parenteau noted that the courts treat criminal cases differently. Courts follow a "rule of lenity" in which they interpret statutory ambiguities in favor of the criminal defendant.
"Whatever they do in a criminal conviction context does not carry over automatically," Parenteau said.
"My gut tells me it’s not going to change anything," he added.