The Volokh Conspiracy

A recent article in Scientific American, “The End of the Everglades?” proclaimed that the two wetlands cases before the Supreme Court “jeopardize[] 90 percent of U.S. wetland[].” According to article author Sara Beardsley, the pending decisions “will probably eclipse [the] importance” of current controversies over domestic surveillance and the detention of enemy combatants. I am skeptical, and find SciAm’s account misleading on several grounds.

John Rapanos has certainly put a very ambitious argument before the Court. He argues that federal jurisdiction under the Clean Water Act (CWA) extends no farther than truly navigable waters and their adjacent wetlands. Were the Court to accept this argument, it is possible that as much as 90 percent of wetlands in the United States, and a majority of other waters within the nation, would no longer be subject to the CWA. This is a plausible descriptive claim, but an implausible prediction. Few informed observers believe such a holding is a realistic possibility. In other words, the possibility SciAm suggests is something of a “worst case” scenario.”

Rapanos and the other petitioner, June Carabell, may well win their cases without the Court adopting Rapanos’ theory of CWA jurisdiction in its entirety. There are many intermediate bases upon which the Court could old that the lands in question are sufficiently remote or disconnected from navigable waters and their tributaries to escape federal jurisdiction. Under existing precedent, wetlands and other waters must have a “significant nexus” or otherwise be “inseparably bound up with” navigable waters to be subject to CWA jurisdiction. It would not take much for the Court to find that either or both parcels failed to satisfy this requirement. The Court could also hold that the lower courts applied too permissive a standard and remand for additional consideration. Any of these outcomes is more likely than the drastic reduction in federal jurisdiction postulated by Scientific American. This is especially so given the Roberts Court’s demonstrated preference for narrow holdings over broad, sweeping pronouncements. So, as a technical matter, it is true that this case could result in the removal of federal protection for the vast majority of wetlands, but this is quite improbable.

The SciAm is also misleading because it equates the reduction of federal regulatory jurisdiction under the CWA with the elimination of environmental protection. This would be a non-controversial claim were federal regulation the only means of protecting wetlands (and if such regulation were clearly effective). But this is not the case. As the article notes in passing, “only half” of state have wetland programs. But this means that some amount of wetland protection would remain in at least half of the states. More importantly, a reduction in federal regulation would almost certainly result in an increase in wetland protection efforts.

After the Supreme Court held in 2001 (in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, aka "SWANCC") that the CWA does not apply to truly isolated waters, several states adopted new statutes or regulations to expand the scope of their protections so as to make up some of the gap. Many other states already had rules on the books covering isolated wetlands, so additional action was unnecessary. Still others considered adopting new rules, and may yet still. As I have documented elsewhere (see, e.g., here and here), states have been more active at wetland protection than many realize. The regulatory uncertainty produced by the SWANCC decision most likely discoraged some states from acting that otherwise would have expanded their wetland protection efforts. As I argue in this draft paper, federal regulation likely has a greater "crowding out" effect on state efforts than is conventionally recognized.

The point here is not that states will completely fill any regulatory gap created by judicial limitations on the scope of CWA jurisdiction. The net result of a victory for the petitioners will be a reduction in wetland regulation, at least in the short run. Nevertheless, state efforts – both those preexisting and subsequent to any decision – must be taken into account when assessing the actual environmental effect of the Court’s decision. This is particularly important because there are reasons to expect that states, in the aggregate, will be more active regulators if federal jurisdiction is limited than they are today. Other factors that must also be considered are the extent to which existing non-regulatory efforts – both public and private – protect certain types of wetlands in certain types of the country, as these programs will not be influenced by the Court’s ruling.

Here is the bottom line: Even if the Supreme Court were to rule this month that 90 percent of wetlands are no longer regulated by the Clean Water Act, this would not mean that 90 percent of wetlands are now unprotected or otherwise "jeopardized". While there are many threats to the Everglades, the pending Rapanos and Carabell decisions should not be counted among them.

UPDATE: I thought it went without saying that there are additional reasons why the Everglades, in particular, would not be threatened by a reduction in Clean Water Act jurisdiction. As noted in the comments, much of the Everglades would remain protected even under an exceedingly narrow interpretation of the law. Substantial portions of the Everglades qualify as wetlands adjacent to navigable waters. Moreover, a ruling on CWA jurisdiction would not affect the protection afforded those portions of the Everglades owned or managed by government entities at the federal or state level. I drew the title of the post from that of the article, but sought to focus on the SciAm story's broader suggestion that a victory for Rapanos and Carabell would necessarily result in a dramatic reduction in federal regulatory jurisdiction or environmental protection.