Wetland case seen as ‘no-brainer’ for Supreme Court review

By Robin Bravender | 10/30/2015 12:58 PM EDT

CHICAGO — Legal experts predicted today that the Supreme Court will review a major water case in what may become the court’s biggest environmental battle of this term.

CHICAGO — Legal experts predicted today that the Supreme Court will review a major water case in what may become the court’s biggest environmental battle of this term.

The court is considering whether to take on a case, U.S. Army Corps of Engineers v. Hawkes Company Inc., that involves assessing whether federal regulators’ determinations of areas qualifying for Clean Water Act protections may be challenged in court.

Although the high court agrees to hear just a tiny fraction of the cases it’s asked to review each year and it’s tough to predict which the court will take, legal experts say Hawkes has the trappings of a case it would choose to weigh in on.


"We’ve got a case that probably comes as close to a no-brainer as you can imagine," Vanderbilt University Law School professor J.B. Ruhl told an American Bar Association environmental conference here.

He and other experts say chances are bolstered because lower courts have split on the issue and because both the Obama administration’s Solicitor General Donald Verrilli and the petitioners involved in the case have asked the high court to take it on.

Verrilli in September asked the high court to take up a federal appeals court’s ruling that ran counter to the positions of U.S. EPA and the Army Corps of Engineers and conflicted with a ruling from another appellate court (Greenwire, Sept. 9).

Petitioners in the case, represented by the Pacific Legal Foundation, also encouraged the high court this week to hear the case and to consolidate it with another case involving the conflicting appellate court ruling. The court has already denied a request to hear that case, Kent Recycling Services LLC v. U.S. Army Corps of Engineers, but a petition for rehearing is pending.

"My suspicion is [the court] wouldn’t be holding a rehearing petition this long if it wasn’t seriously considering granting [certiorari] in Hawkes," said Ray Ludwiszewski, an attorney at Gibson, Dunn & Crutcher.

"I think that [petitioners] are going to get cert, and I suspect they may not like the outcome," Ludwiszewski added.

Harvard University Law School professor Richard Lazarus agreed: "The government should win this case," he said.

Circuit split adds intrigue

Both the Hawkes and Kent Recycling cases concern a regulatory issue that property rights advocates and environmental lawyers contend has major ramifications.

Hawkes centers on Minnesota property owner Hawkes Company Inc., which wanted to mine peat moss for use in landscaping. The company sought a "jurisdictional determination" from the Army Corps, in which regulators decide whether wetlands qualify for Clean Water Act permitting rules.

In April 2012, the corps told the company that the peat bog in northwest Minnesota qualified for Clean Water Act protections because of its hydrological link to the Red River.

But Hawkes sought to challenge the decision in court, arguing that the permitting process would put significant burdens on the company, costing it about $270,000.

The 8th U.S. Circuit Court of Appeals ruled earlier this year that the company could file a legal challenge to undermine an Army Corps jurisdictional determination, but that decision conflicted with other courts’ opinions. Other federal appeals courts have ruled that jurisdictional determinations are not final agency actions that can be challenged in court.

In September, Verrilli argued that the lower court’s decision in Hawkes is "incorrect" and said the issue is worthy of review because the question raised is "recurring and significant."

The Kent Recycling case concerns a tract of land that Kent Recycling has an option to buy if it can build a landfill there. The Army Corps said in 2011 that the parcel qualifies as a wetland and that the company would need to obtain a Clean Water Act permit.

Kent Recycling challenged that jurisdictional determination in court. The 5th U.S. Circuit Court of Appeals in New Orleans sided with the government, ruling last July that such determinations aren’t subject to court challenges because they don’t constitute final agency actions.

The Supreme Court in March rejected Kent Recycling’s petition to take up its appeal, but the decision in the Hawkes case may prod the justices to take another look.

"This new circuit split creates substantial nationwide uncertainty as to a law this Court has said pushes the very limits of constitutional authority and puts landowners at the mercy of regulating agencies," Kent Recycling wrote in April, when it petitioned the Supreme Court again to hear its case (E&ENews PM, April 20).

Verrilli, however, contended that the Hawkes case provided a better vehicle for the court to review. The court could decide to take either one of the cases on its own or review both cases.