Rapanos Redux

Two weeks ago I posted an entry about the Clean Water Restoration Act (“CWRA”). Shortly thereafter, at the request of U.S. Representative James Oberstar, the EPA issued a report containing the anecdotal comments of various regional EPA and U.S. Army Corps of Engineer officials regarding the Supreme Court’s decision in Rapanos. That decision serves as one of the rallying points for supporters of the CWRA, who claim that it has limited the scope of federal jurisdiction under the Clean Water Act and caused confusion among government agencies as to what jurisdiction actually does exist.

The upshot of the report is that there is unverified anecdotal evidence that uncertainty associated with the Rapanos decision has increased costs to the EPA (and to some extent the Army Corps of Engineers) associated with evaluating and bringing enforcement actions. The report specifically states that nationwide the Rapanos decision has affected approximately 489 enforcement actions, “such that formal enforcement was not pursued as a result of jurisdictional uncertainty, case priority was lowered as a result of jurisdictional uncertainty, or lack of jurisdiction was asserted as an affirmative defense to an enforcement action.” (See Report, p. 1) This report supports the notion that some resolution of the confusion caused by Rapanos, such as the CWRA, is needed.

Whether Rapanos improperly limited jurisdiction under the Clean Water Act or reigned in out of control jurisdiction is a question of perspective. That the Rapanos decision has caused confusion is not. This is evident in the split of the various U.S. Courts of Appeal over which of the three tests propounded by the Supreme Court should be controlling. (See e.g. United States v. Cundiff, 555 F.3d 200, 207 (6th Cir. 2009)(“Parsing any one of Rapanos's lengthy and technical statutory exegeses is taxing, but the real difficulty comes in determining which--if any--of the three main opinions lower courts should look to for guidance.”)

Indeed, the Sixth Circuit in Cundiff discusses the dilemma and current divisions among Circuit Courts quite succinctly:

In its short life, Rapanos has indeed satisfied any "bafflement" requirement. The first court to decide what opinion was controlling decided to ignore all of them and instead opted for earlier circuit precedent which it felt was clearer and more readily applied. United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006). The Courts of Appeals have not fared much better. The Ninth Circuit has stated that Justice Kennedy's test applies in most instances, Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007), while the Eleventh Circuit has held that the Act's coverage may be established only under his test. United States v. Robison, 505 F.3d 1208, 1219-22 (11th Cir. 2007). By contrast, the First and the Seventh Circuits, though differing somewhat in their analyses, have followed Justice Stevens' advice and held that the Act confers jurisdiction whenever either Justice Kennedy's or the plurality's test is met. United States v. Johnson, 467 F.3d 56, 60-66 (1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006).

Cundiff, at 208. The Sixth Circuit was able to dodge the dilemma in Cundiff by ruling that Clean Water Act jurisdiction existed under all three tests in that particular case. Other Circuits have similarly dodged the bullet thus far, while presumably hoping that either the Supreme Court or Congress will act to resolve the confusion.

Rapanos is not the first splintered decision issued by the Supreme Court, and the Court has provided some guidance to lower courts for exactly this eventuality, “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’" Marks v. United States, 430 U.S. 188, 193 (U.S. 1977). This test essentially invites the lower courts to guess how the Supreme Court justices would vote if the case were before them. Unfortunately, the plurality and Kennedy tests enunciated in Rapanos each flatly reject the other. This is complicated by the dissenting Justices who command four votes and held that jurisdiction exists under either test. Thus:

Although "in most cases in which [Justice Kennedy] concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality)," in other cases Justice Kennedy "would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection."

Cundiff, at 210 (citations omitted). Given the confusion among the courts, it is not difficult to see why the Army Corps of Engineers and EPA are having trouble with Rapanos.