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Friday, August 25, 2006 

Rapanos Questions

The editors of Science have decided to weigh in on the recent Clean Water Act decision by the Supreme Court, Rapanos v United States. The case involved whether the US Army Corps of Engineers could regulate a piece of property in Michigan that they said was hydrologically connected to ditches and drains. The Court ended with a 4-4-1 split, with Scalia writing for Roberts, Thomas, and Alito, Stevens writing for Souter, Ginsburg, and Breyer, and Kennedy joining Scalia and co. only to send the case back to the lower court. Kennedy had a different view (which is widely viewed as the controlling view, and therefore the law) on the matter.

Science sums up the views nicely...
The Court's fundamental split will surprise few. Justice Scalia, representing the views of Roberts, Alito, Thomas, and himself, offered a very restrictive definition of wetlands: They must have surface connections to navigable waters. That view would have stripped regulatory protection from lands historically treated as wetlands by the Corps of Engineers. On the other side, Justice Stevens, for Souter, Ginsberg, and Breyer, favored a definition that includes groundwater with a significant nexus of connection to more distant navigable waters. Justice Kennedy wrote the decisive opinion, in effect bouncing the matter back to the appellate court. His position favored the "significant nexus" view, adding that the determination would essentially be a scientific matter, within the proper scope of the regulatory agency's authority.
The significant nexus view is pretty much where the law was before the decision. The Court had been placing limits on what the Corps could regulate, though. In Solid Waste Agency of Northern Cook County v US Army Corps of Engineers, the Court struck down the Corps' Migratory Bird Rule. That rule placed intrastate waters that provide habitats for migratory birds under the jurisdiction of the Corps. The Court stated that allowing federal jurisdiction here would be wrong. A bird flying between states and resting in isolated pond after isolated pond is not enough of a connection for the Corps to claim federal jurisdiction. These waters should be left to the states in light of traditional federalism issues and Constitutional Commerce Clause issues.

The editors of Science take aim at Justice Scalia's opinion...
His search for commonplace labels as proxies for scientific definitions must have left his copy of Webster's Dictionary dog-eared from overuse; the text cites it over and over again. His opinion shows no awareness of what hydrologic investigations have demonstrated about the interconnectedness of ground and surface waters. Neither is there any suggestion that groundwater moves (it does) or that it regularly feeds surface streams or lakes, often keeping these waters flowing between rainstorms. The essential message is: "If you can't see it, it doesn't matter."
There is the split on the Court. One bloc will look at the hydrological connections between aquifers; the other bloc will not. My usual mantra here is that Congress could settle this entire mess by making the statute clear. However, that might not (and probably would not) work. This isn't just a statutory issue (although it is right now); it's a Constitutional issue. Congress regulates environmental matters under the Commerce Clause. If the conservative bloc is still using Chief Justice Rehnquist's Commerce Clause standards, Congress can only regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce. I have my doubts that Scalia and co. think that hydrological connections pass that test.

The editors make one more point worth mentioning...
Second, despite the meager opportunity for direct scientific input to the Court, concerned scientists could help federal agencies work out realistic scientific standards for defining a "significant nexus" and get those into the Code of Federal Regulations. They might also be useful in the next big case, when the Court will decide whether carbon dioxide is a pollutant under the Clean Air Act. Perhaps they could give the justices something more scientifically helpful than Webster.
I think that they have a good point... sort of. Scientific input is great and welcome at the legislative stage and at the agency level. The courts in general and the Court in particular are often hesitant to make those kinds of highly technical inquiries on matters.

Remember, Congress has immense powers to investigate issues. They have committees and hearings, listening to testimony of experts. They commission studies and reports. They can do that kind of fact heavy inquiry. Agencies are similar. The phrase "agency expertise" pops up in administrative law and environmental law opinions all of the time. They are expected to be experts in their fields with highly specialized knowledge.

The courts don't have those powers. They're just a handful of judges with another handful of clerks. They are often very wary of delving too deeply into highly technical questions. Many judges see that kind of analysis and second guessing as beyond their role in the separation of powers scheme. I expect to see language of that type in the eventual opinion(s) in the Clean Air Act case.

----- Original Message -----
From: (Mr.) Kelly M. Haggar
To: bhanson@aaas.org
Sent: Friday, August 25, 2006 11:22 PM
Subject: What's a Wetland, Anyhow?

Read your editorial; found it quite puzzling. Why do you believe scientific knowledge about hydrology, particularly subsurface activity, has some kind of connection (no pun intended) to a pure legal question of statutory construction?

The argument you seem to be advancing here - that subsurface activity is covered by the existing law - was explicitly rejected in Harken v. Rice, a 5th Cir case which Rapanos did not disturb.

SHOULD the CWA cover subsurface flow is one kind of question, and it is NOT a legal one. DOES the CWA cover it is a different question, and that one is a legal question.

As a matter of law, Justice Scalia got it right.


People often lose sight of the fact that the Court looks at legal questions. They look at the text of a statute and interpret it in a lawyerly fashion.

Unfortunately, the Court has made itself a wholly political body on more than one occasion in its history. So I guess I can forgive those people who expect political results. Maybe I can forgive them...

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