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 raises 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 is quite sure what. We believe that the careful textualist plurality opinion written by Justice Scalia should provide the rule, and so do the petitioners. Believing that it is in everyone’s interest for the Court to identify a clear, workable, authoritative rule, NELF filed an amicus brief urging the Court to grant certiorari and reexamine Rapanos.
In its brief NELF 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, in deciding what the jurisdictional rule is, the lower courts have seemingly worked through all the permutations of the Rapanos split. The Ninth Circuit in this case and some other courts adopt Justice Kennedy’s “significant nexus” test, despite the fact that the eight other justices expressly repudiated it. Other courts believe that Rapanos requires a landowner to disprove jurisdiction under both Justice Kennedy’s concurrence (which repudiated the plurality) and Justice Scalia’s plurality (which repudiated the concurrence). A third group of courts refuses to identify any controlling opinion in Rapanos and defaults to requiring the application of both approaches also. The Fifth Circuit, in despair, applies all the tests enunciated in the 4-1-4 split. Not surprisingly, some circuit courts have at times vacillated among the three tests. In short the lower courts remain “baffled and divided” about what to make of the split decision of Rapanos, which, in Supreme Court practice, is reason enough for the Court to reexamine Rapanos.
NELF also criticized the Rapanos one-justice concurrence specifically. 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 merely used to describe the importance of adjacency in disambiguating the jurisdictional status of certain wetlands in the 1985 case. From that passing reference the concurrence 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 unfavorably to the textualist approach taken by the plurality.
On January 22, 2022, the Supreme Court granted certiorari in this very important case.