Eminent Domain

Jonathan Adler and I are two of many people waiting for the opinion in Rapanos v United States and Carabell v U.S. Army Corps of Engineers. These cases, jointly argued, challenge the federal government's regulatory power under the Clean Water Act. Unfortunately, the opinion did not come down today, but it's possible that it will be issued as soon as Thursday.

Prof. Adler sums up the situation...

The CWA applies to all‚ "navigable waters of the United States" (which the Act defines simply as "waters of the United States"”). As interpreted in prior cases, this jurisdiction extends to cover wetlands adjacent to navigable waterways (but does not reach isolated, intrastate waters). At issue in each case is how far the CWA's jurisdiction extends beyond navigable waters and adjacent wetlands, specifically whether the Act applies to wetlands adjacent or hydrologically connected to tributaries of navigable waters. In one case, the wetlands are adjacent to a ditch that drains into a creek that in turn drains into a tributary that is connected to a navigable waterway many miles away. In the other, the wetland is directly adjacent to a tributary, but it is hydrologically separated by a man-made berm.

Statutes like the CWA are full of fun terms like "navigable waters". When asked during environmental law what I thought the term should mean, I said that it seemed like water that you could traverse with a kayak. That's my stunning legal mind at work. Of course, that isn't what it meant (and I knew that because I did read for class that day). The term, as pointed out by Alder, is defined in the statutue. The definition isn't exactly helpful though. These cases are trying to determine exactly how much of a hydrological nexus is needed for the feds to step in and regulate.

The positions of the opposing sides are as follows...

The federal government argues that jurisdiction under the CWA extends to all wetlands with any hydrological connection to navigable waters, no matter how small or insignificant. "One drop"” is enough, according to Solicitor General Paul Clement at oral argument. Rapanos'’ attorneys at the Pacific Legal Foundation make an equally ambitious argument, that the CWA does not apply past those wetlands truly adjacent to navigable waters‚– and that if it did it would press against the limits of the federal government'’s Commerce Clause power.

As Adler states, expect something in the middle from the final opinion. It's going to come down to whom on the Court holds that crucial fifth vote and which side that Justice is more likely to favor.

I think that the most interesting part of this case won't necessarily be the opinion itself (though it might be). The votes and possible opinions of Chief Justice Roberts and Justice Alito will be what I am watching for in this case. This case may give us an important preview of the new Justices' views on federal regulatory power, which may tell us an awful lot about an awful lot.