Still Reckoning with Rapanos:

Yesterday Greenwire published a story, the first of a three-part series, discussing how lower courts have sought to deal with the Supreme Court’s decision in Rapanos v. United States, in which a divided Court held (for the second time) that federal regulations promulgated by the U.S. Army Corps of Engineers (and EPA) under the Clean Water Act exceeded the scope of federal authority under the Clean Water Act.  The Court split 4-1-4.  The plurality, by Justice Scalia, and Justice Kennedy held that the Corps of Engineers has adopted an impermissibly broad reading of the Clean Water Act.  In the absence of a permissible interpretation, Justice Scalia put forward a narrow interpretation of federal regulatory authority.  Justice Kennedy, by himself, articulated a test for the scope of federal jurisdiction that would limit federal regulatory under the Clean Water Act to navigable waters and those waters and wetlands with a “significant nexus” to such waters.

As the Greenwire story recounts, lower courts have had some difficulty applying Rapanos in subsequent cases.  Some of this difficulty has resulted from confusion over whether the Corps is free to use either test to establish jurisdiction.  In my view, this difficulty is due to lower courts’ failure to recognize that Justice Kennedy’s opinion should be considered controlling.  As I’ve explained in prior posts and writing on Rapanos, Justice Kennedy’s was the “narrower” opinion in that it allowed for greater regulatory authority and there are few if any wetlands that could satisfy the requirements of Justice Scalia’s plurality without also satisfying Justice Kennedy’s significant nexus test.

The greater difficulty has come not from determining which opinion controls, but in applying the “significant nexus” test. And here the problem is less with Rapanos than with the Corps’  refusal to engage in a notice-and-comment rulemaking to clarify the scope of their jurisdiction and define “significant nexus.”  Justice Kennedy encouraged the Corps to take this step in his opinion, so as to avoid the need for detailed, case-by-case jurisdictional determinations, as did Justice Breyer and the Chief Justice in separate opinions, but the Corps did not listen.

As I’ve explained in several articles on federal wetlands regulation, the Corps and EPA have been on notice since 1995 that their jurisdictional regulations were problematic. After Lopez, even those who were generally favorable to expansive federal wetland regulation acknowledged that the regulations had to be redone so as not to raise federalism concerns, but the Corps’ did nothing.  Then came SWANCC, which adopted a narrowing construction of federal regulatory authority under the Clean Water Act and rejected the Corps’ assertion of jurisdiction over isolated waters. Now it was even more clear that the Corps needed to redo its regulations. Again, however, it did nothing. When the Bush Administration sought to do a new rulemaking, environmental groups and the hook-and-bullet crowd squawked, fearing insufficiently expansive regulations, and the agencies backed down.

The failure to promulgate new regulations defining the scope of federal regulatory authority made Rapanos inevitable.  And, sure enough, in Rapanos, three of the opinions expressly noted that the Corps had the ability to resolve the confusion by doing a new rulemaking. The Corps’ is the expert agency. It is in the best position to define what sorts of ecological connections are indicative of a “significant nexus.” Courts can’t do that; they lack the relevant expertise.  Courts can, however, determine whether federal agencies ave adopted regulations that comply with constitutional and statutory constraints.

If the confusion about the scope of federal regulatory jurisdiction under the Clean Water Act is to be resolved, the Corps (and EPA) will have to act.  Specifically, they have to promulgate new regulations after notice and comment. A regulatory guidance can’t do the trick because guidances don’t get Chevron deference. Enacting CWA reforms (like the Clean Water Restoration Act) also won’t do it.  Such legislation would still leave too much open-ended and require a new rulemaking to provide legal certainty.  In short, the only way out of this morass is for the responsible agencies to stop up to the plate and adopt rules that clarify the basis for asserting regulatory jurisdiction while also respecting federalism limits on agencies’ regulatory authority.