NELF Successfully Urges the Supreme Court to Clarify the Rule for Jurisdictional “Waters of the United States” under the Clean Water Act
Sackett v. Environmental Protection Agency, (U.S. Supreme Court Nos. 21-454)
They say that to a carpenter the whole world looks like a nail. Apparently, to the EPA virtually every drop of water looks like “waters of the United States” and is subject to federal regulation. This case raised the important question of what rule determines when water counts as jurisdictional “waters of the United States” under the Clean Water Act. Faced with the issue in Rapanos v. United States, 547 U.S. 715 (2006), a badly split Court decided (4-1-4) — well, no one was quite sure what. We believed that the careful textualist plurality opinion written by Justice Scalia should provide the rule. Judging that it would be in everyone’s interest for the Court to identify a clear, workable, authoritative rule, NELF filed an amicus brief in this case, urging the Court to grant certiorari and reexamine Rapanos.
In its brief NELF first pointed out that in the past the Court has accepted cases specifically when, as here, lower courts are baffled and divided in their effort to understand a badly split Supreme Court decision. NELF noted that lower courts had seemingly worked through all the permutations of the Rapanos split. The Ninth Circuit and some other courts adopted the “significant nexus” test found in Justice Kennedy’s concurrence, despite the fact that the eight other Rapanos justices expressly repudiated it. Some courts believed that Rapanos requires a landowner to disprove jurisdiction under both Justice Kennedy’s test (which repudiated the plurality’s test) and Justice Scalia’s plurality test (which repudiated the concurrence’s test). Other courts adopted other approaches. The Fifth Circuit, in despair, applied all the tests enunciated in the 4-1-4 split.
In short, for fifteen years after Rapanos, the lower courts remained “baffled and divided” about what to make of that case, which is reason enough, in Supreme Court practice, for the Court to reexamine the legal issue in question.
Next, NELF criticized Justice Kennedy’s lone concurrence, as it was the most commonly used test and the one adopted in this case. Tracking the origin of its supposed “significant nexus” test to a 2001 Supreme Court case commenting on an earlier, 1985 case, NELF showed that the expression was never intended to denote any test at all. The phrase was used merely to describe the importance of adjacency in disambiguating the jurisdictional status of certain wetlands in the 1985 case. From that passing reference the concurrence had fashioned a “significant nexus” test focused, not on adjacency, but on the “effects” of some waters on the chemical, physical, and biological integrity of other, covered waters. NELF contrasted the concurrence’s test unfavorably to the careful textualist approach taken by the Rapanos plurality opinion written by Justice Scalia.
On January 22, 2022, the Supreme Court granted certiorari in this very important case. In its merits decision of May 2023, the Court adopted the test set out in the Rapanos plurality.