Rapanos -- Once More, with Feeling:

I recently completed another short paper on Rapanos v. United States, in which a splintered Supreme Court adopted a narrow construction of federal regulatory jurisdiction under the Clean Water Act. Because I had already published a short paper on the decision, the title captures my approach to the piece. (It was also taken from a Buffy episode, which makes several cameos in the text of the piece.)

This paper was solicited by the Land Use Institute at Vermont Law School. It will be published in a forthcoming monograph collecting several essays on the Rapanos decision and its implications for wetland conservation and water pollution control. I believe all of the contributions will be available on the VLS website once the project is complete. In the meantime, a draft of my paper is available on SSRN, and I have reproduced the abstract below.

The Supreme Court's decision reaffirming limits on federal regulatory jurisdiction in Rapanos v. United States was significant, but hardly revolutionary. The Court's holding that the Clean Water Act only reaches those wetlands with a significant nexus to navigable-in-fact waters followed directly from its prior decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in which the Court held the CWA did not extend to isolated, intrastate waters because they lack a significant nexus to navigable waters. Rapanos and SWANCC suggest the Court is reluctant to conclude Congress has authorized far-reaching federal regulatory controls over private land use, absent explicit statutory language to the contrary. Such a federalism clear statement rule may be in tension with some environmental concerns, but it need not hamper environmental conservation. Environmental progress is wholly consistent with meaningful limits on federal power. If the federal government is to play an optimal role in the protection of wetlands, and match its efforts to those aspects of wetland conservation that require action of a federal scope, it would concentrate its efforts in those areas where non-federal efforts are most likely to be insufficient. The challenge to policy makers is to adapt conservation measures to the broader legal landscape and recognize that environmental protection can live within legal limits.