How the Clean Water Act Went Off the Rails


shutterstock_121109029Late last month, a federal district judge in North Dakota took the rare step of questioning the scope of the EPA’s jurisdiction under the Clean Water Act, holding up a new agency rule that includes a capacious definition of the “waters of the United States.” As I note in my new column for Defining Ideas, we wouldn’t be in this mess were it not for a long string of judicial decisions that have consistently increased the EPA’s authority and muddled the legal landscape:

… The massive nature of this new regulation is made plain in the introductory paragraph of Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States:

“In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.”

Justice Scalia was right to think that the case itself represented a massive and unwarranted expansion of government power under the [Clean Water Act]. But his opinion only carried four votes. Four dissenters led by Justices Breyer and Stevens took the position that Congress had indeed exercised its maximal powers of the waters of the United States so that the entire matter was best left in administrative hands. Thus, as is often the case, the decisive vote was cast by Justice Kennedy who sought to split the difference by deciding the proper definition required that “to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus to waters that are or were navigable in fact or that could reasonably be so made.”

Justice Kennedy’s wobbly position duly became the applicable standard. But just what does it mean? Justice Kennedy himself did not know, so he punted the entire matter back to the lower courts to figure out exactly what his “significant nexus” test meant. It does not take the benefit of hindsight to realize the fatal mistake in that decision. Jurisdictional rules have to be clear, and the substantial nexus test is a pure matter of degree. That test might have had some bite if Justice Kennedy said that the Corps did not come close to meeting the standard in Rapanos. But his remand signals the exact opposite conclusion, that significant in law could be turn out to be rather puny in practice.

Note that in claiming permit power, the Corps did not make any claim that Rapanos’s activities actually had any perceptible negative effect, real or anticipated, on the navigable waters of the United States. What the permitting process therefore did was to put the burden on Rapanos to try to prove the negative in a setting in which there is at most a de minimis likelihood that filling in dirt could result in damage to navigable waters located long distances away. At this point, the systematic mistake of a CWA on steroids is that it alters for the worse the standard common law rule that in private disputes an injunction against certain activities will be issued only on a showing of actual or imminent harm, at which point the activity is stopped until the situation is corrected. There is little unnecessary wastage under this rule, but no real loss in environmental protection.

You can read the argument in full here.

Published in Law
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There are 5 comments.

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  1. Don Tillman Member
    Don Tillman

    Question: Is there anything to indicate that EPA actions like this are politically motivated?  Is John Rapanos a Republican?

    • #1
  2. Chris Campion Coolidge
    Chris Campion

    I really can’t believe we have an agency that defines mud puddles for us, and what we can or cannot do with them.

    • #2
  3. Chris Johnson Inactive
    Chris Johnson

    It is important to understand that this process is driven entirely by politics, at the national level, and affords little in the way of additional environmental protection, at the local level.  For decades, federal jurisdiction over Waters of the Nation has been the big stick wielded over the smaller ecosystem.  For example, there have been Waters of the State, defined as those wetlands which connect with navigable systems by a conveyance over a certain cross-sectional area.  Greater jurisdiction still is achieved regionally.  In Florida, for instance, there are Water Management Districts and those waters include isolated wetlands, over 1/2 acre in size.  Further jurisdiction is claimed at the local or county level, wrapping in even the smallest, isolated wetlands.

    The practice for decades has yielded the widest jurisdiction to those regulators closest to the land in question.  In this example, a landowner with saturated soils in a low area can cause flooding on an adjacent landowner’s property, should the historically low area be filled and the historic storage in the low area be lost.  Neighbors can contest such activities at a local and relatively affordable level.

    Expanding the jurisdiction subject to federal regulation does not necessarily expand the protection afforded to wetlands.  It merely adds distant bureaucrats to the process that are themselves the least familiar with the geography and local conditions.  Permitting and litigation will favor the most politically connected, at the national level.

    • #3
  4. Scarlet Pimpernel Inactive
    Scarlet Pimpernel

    In the period up to the civil war, judges were known to charge juries, saying that “if they hold the law in question to be unconstitutional, they will dismiss the charges.” I believe the legal monopoly got them to stop doing that after the Civil War. Perhaps it’s tiime we bring back the right and duty of juries to judge law and fact in such cases, and, of course, to allow juries in such cases.

    • #4
  5. Don Tillman Member
    Don Tillman

    Welcome visitors from Instapundit.

    It appears to me that the court system is useless here, they’re sent into a tizzy right up to SCOTUS.

    It also appears that the EPA needs some reorganization if it’s misappropriating language so plain as the term “navigable waters” in order to make mischief.

    Congress created the EPA, they need to fix it.

    • #5
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