Yesterday, the U.S. Supreme Court issued a fractured decision in consolidated appeals raising the issue of which wetlands come within the ambit of the federal Clean Water Act (â€œCWAâ€?). The wetlands at issue were next to drainage ditches that, when full of water, would eventually flow into navigable waters. The record did not establish whether the connections between the wetlands and the drainage ditches were continuous or intermittent, or whether the ditches contained continuous or merely occasional flows of water.
Deeming those missing facts irrelevant, the Army Corps of Engineers (the agency the CWA charges with granting â€œdredge and fill permitsâ€? for wetlands) determined that the wetlands were within the scope of the CWA. A five-justice majority found that determination to be hasty and voted to remand the cases for further consideration of whether the wetlands at issue were within the CWAâ€™s reach. The five justices disagreed, though, on the proper standard to apply. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, articulated one test; Justice Kennedy set forth a less stringent test (which the lower court will presumably apply on remand).
The New York Times is unhappy with the Courtâ€™s judgment but insists that â€œit could have been much worseâ€? if Justice Scalia had garnered a fifth vote in favor of his â€œvery restricted view of the Clean Water Act.â€? The Times insists that Justice Scaliaâ€™s test for what constitutes a covered wetland is â€œlargely inventedâ€?; that the views of the Scalia-led plurality amount to â€œjudicial activismâ€?; and that Justice Kennedyâ€™s alternative test, presented in a â€œcareful opinion,â€? is laudably â€œmoderate.â€?
The Times is wrong on all these points.
Not surprisingly, Justice Scaliaâ€™s test for covered wetlands sticks closely to the text of the CWA. The relevant part of that statute prohibits, absent a permit, â€œthe discharge of any pollutant by any person.â€? â€œDischarge of a pollutantâ€? is defined as â€œany addition of any pollutant to navigable waters from any point source.â€? The term â€œnavigable watersâ€? is defined as â€œthe waters of the United States, including the territorial seas.â€? The key legal question, then, is which wetlands are â€œnavigable watersâ€? under this definition.
Now, one might initially think that no wetland could constitute a â€œnavigable water,â€? since itâ€™s generally impossible to drive a boat through a wetland. That argumentâ€™s a non-starter, for â€œnavigable watersâ€? is a defined term: â€œthe waters of the United States.â€? Even Justice Scalia recognizes that wetlands can come within the CWAâ€™s reach when they are â€œthe waters of the United States.â€?
So what are â€œthe waters of the United Statesâ€?? As Justice Scalia notes, they do not include all the drops of water in America: â€œThe use of the definite article (â€˜theâ€™) and the plural number (â€˜watersâ€™) show plainly that [the definition of navigable waters] does not refer to water in general.â€? Instead, the term refers (consistent with its dictionary definition) to â€œcontinuously present, fixed bodies of water,â€? not â€œtransitory puddles or ephemeral flows of waterâ€? or â€œordinarily dry channels through which water occasionally or intermittently flows.â€?
But this does not mean that wetlands can never be part of â€œthe waters of the United Statesâ€? (and thereby covered by the CWA). In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), the Court concluded that wetlands abutting a non-transitory, navigable waterway do come within the Act. That’s because, with wetlands adjoining a navigable water, itâ€™s nearly impossible to tell where the navigable waterbody ends and the wetlands begin. The surface connection thus renders the wetland part of the navigable waterway and brings it within the CWA. By contrast, isolated, nonnavigable, intrastate waters are not themselves â€œwaters of the United States,â€? do not present the line-drawing problem applicable to abutting wetlands, and therefore are not within the CWAâ€™s reach. That was the holding of the Supreme Courtâ€™s decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (hereinafter â€œSWANCCâ€?).
The cases decided yesterday involved wetlands that were not themselves â€œthe waters of the United Statesâ€? (because they were ephemeral and transitory), nor did they abut any such waters (so that line-drawing would be impossible). Their only connection to â€œthe waters of the United Statesâ€? was that they were near a ditch that may or may not have contained a continuous flow into waters of the United States. As noted, the record did not show (1) that the wetlands at issue were continuously connected to the ditches at issue, or (2) that the ditches contained continuous flows into permanent waters. Remand was therefore appropriate.
Consistent with the dictionary definition of â€œthe waters of the United Statesâ€? and the Courtâ€™s precedents defining such waters, Justice Scalia would have required the Corps to show:
First, that the adjacent channel contains a “water of the United States” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.
Given that Justice Scaliaâ€™s test for what constitutes a covered wetland is based squarely on the text of the statute and the Courtâ€™s precedents defining â€œthe waters of the United States,â€? the NYTâ€™s claim that the test is â€œlargely inventedâ€? is just wrong.
So is the assertion that the Scalia-led plurality was engaged in judicial activism. The Timesâ€™ charge here is that reining in the Army Corps of Engineers amounted to a usurpation of policymaking authority best left to the political branches:
For all the talk of liberal judicial activists, it was Justice Antonin Scalia and his fellow conservatives who voted to substitute their own preferences for a decision made by the executive branch, in the form of the Army Corps, interpreting a statute passed by Congress. It was the liberals who were “judicially modest,” to use a favorite phrase of Chief Justice Roberts, deferring to the elected branches.
Is the Times suggesting that any decision by the Court that the Executive Branch has misinterpreted a statute constitutes â€œjudicial activismâ€?? Câ€™mon guys. When an agency adopts an incorrect interpretation of an unambiguous statute, itâ€™s not â€œactivistâ€? for the Court to insist on fidelity to the text Congress enacted.
Thatâ€™s exactly what happened here. The Corpsâ€™ current regulations define â€œthe waters of the United Statesâ€? to include (inter alia) intrastate mudflats, sandflats, wetlands, prairie potholes, and wet meadows, as long as â€œthe use, degradation, or destruction of [such intrastate â€˜watersâ€™] could affect interstate or foreign commerce.â€? Also included are wetlands adjacent to any such â€œwaters,â€? including those â€œ[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.â€?
Under the Supreme Courtâ€™s 2001 SWANCC decision, that definition is, without doubt, overly broad. While SWANCC held that a mere connection to interstate commerce was not enough to bring a non-navigable, isolated, intrastate waterway within the purview of the CWA, the Corpsâ€™ current regulations attempt to do just that. The Corps is, in short, flouting the Supreme Court. And itâ€™s well-aware of that fact. As Chief Justice Roberts noted in his concurrence, the Corps initiated a rule-making to revise its regulations following SWANCC, but it eventually abandoned those efforts, deciding to leave its invalid rules on the books.
Itâ€™s hardly â€œactivismâ€? for the Supreme Court to insist that the Corps live within the jurisdictional limits set by Congress â€“ especially after the Corps has already been reminded of, but has chosen to ignore, those limits.
Justice Kennedyâ€™s â€œModerationâ€?
So what about Justice Kennedyâ€™s â€œmoderateâ€? test, set forth in â€œa careful opinion, much in the tradition of Justice Sandra Day Oâ€™Connorâ€?? In that opinion, which will likely be followed on remand, Justice Kennedy stated that the proper test for wetlands such as those at issue is whether they possess a â€œsignificant nexusâ€? to waters that are navigable in fact or that could reasonably be so made. To make that determination, the Corps should consider, â€œon a case-by-case basisâ€? whether the wetlands adjacent to non-navigable tributaries â€œsignificantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as â€˜navigable.â€™â€?
Putting aside that it offers planners almost no guidance and would seem to give the Corps almost limitless discretion in determining which wetlands to regulate, this neat little test has absolutely no connection at all to the text of the CWA. The statute itself never mentions a â€œsignificant nexusâ€? to anything, and Congress certainly could have legislated in such terms had it so desired. Thus, Justice Kennedy has essentially written his own definition of â€œnavigable water.â€?
For this reason, his opinion is the least moderate of the bunch. At least the dissenters would have just deferred to the definition adopted by the Army Corps of Engineers. That seems significantly more moderate than creating a definition out of thin air.