Channeling Scalia in a New WOTUS Rule

Posted on March 24, 2017 by Donald Shandy

By now, most of the readers of this blog have heard about or read President Trump’s Executive Order directing the EPA to re-evaluate the “Waters of the United States” Rule.  This announcement brought cheers from farmers, developers, and many industry groups who had opposed EPA’s Clean Water Rule (aka “WOTUS rule”) and groans, moans, and other choice words from environmental NGOs, wetlands specialists, and supporters of the WOTUS rule.  There are many articles written about what this executive order means and other articles speculate at what a new rule from a Scott Pruitt led EPA may look like under a Scalia-based definition of “navigable waters” when all of this shakes outs.

Being an Oklahoman and having interaction with Scott Pruitt over the years when he was Attorney General, I decided to take a look back at Justice Scalia’s plurality opinion in Rapanos v. United States, to see I if could piece together a couple of key components I would expect to see in a new WOTUS rule.  I note at the outset that the executive order does not require the EPA to use Justice Scalia’s definition of “navigable waters”; only that EPA “shall consider interpreting the term ‘navigable waters’ . . . in a manger consistent with” Justice Scalia’s definition in Rapanos.  However, having observed Administrator Pruitt making arguments on behalf of the State of Oklahoma as Attorney General, I would be surprised if he does not channel Justice Scalia into the new rule.

There are two points in Justice Scalia’s opinion in Rapanos that stand out.  First, he rejected the Army Corps of Engineers’ interpretation of “waters of the United States” under a Chevron step two analysis, stating that the “Corps’ expansive interpretation of that phrase is not ‘based on a permissible construction of the statute.’”  The CWA uses the phrase “navigable waters” and traditionally, that phrase applies to “relatively permanent bodies of water.”  Further, Justice Scalia pointed to language in the CWA that categorized channels and conduits that typically carry intermittent flows separately from “navigable waters.”

Second, Justice Scalia concluded that Congress’ use of “waters of the United States” did not “authorize [an] intrusion into such an area of traditional state authority as land-use regulation.”  Justice Scalia criticized Justice Kennedy’s “significant nexus” test because it failed to account for the “primary state responsibility for ordinary land-use decisions.”  In Justice Scalia’s opinion, by taking a narrow view that the only purpose of the CWA was to “clean up the waters of the United States,” and that anything affecting the chemical, physical or biological integrity of those waters should therefore be jurisdictional, Justice Kennedy employed “the familiar tactic of substituting the purpose of the statue for its text [and] freeing the Court to write a different statute that achieves the same purpose.”  Thus, Justice Scalia thought any interpretation of “waters of the United States” must account for the traditional role of the states in determining land use.

In looking at these two components of Justice Scalia’s plurality opinion and reflecting on Administrator Pruitt’s viewpoint when he was Attorney General of Oklahoma, it appears that Justice Scalia and Administrator Pruitt may be aligned when it comes to how the CWA should overlay with states’ role of land-use decisions.  I think we can expect Administrator Pruitt to champion and strengthen the notion of cooperative federalism and increasing the role of the states in crafting the new water rule.  If Pruitt’s EPA takes heed of Justice Scalia’s plurality opinion in Rapanos, I think we will see more involvement by the states in crafting the language of the rule and a narrower definition that could lead to more certainty in jurisdictional determinations.

What Would Leon Billings Think?

Posted on March 7, 2014 by Richard Lazarus

Almost as soon as U.S. Supreme Court Justice Scalia joined the bench in the fall of 1986, he made clear his disdain for arguments that the meaning of statutory text could be gleaned from its legislative history. And advocates before the Court who made the mistake of equating “congressional intent” with a statement made by an individual member of Congress during a hearing or a colloquy on a chamber floor could expect a sharp rebuke from the Justice.

The debate at the Court about the proper role of legislative history in statutory construction was not fully joined, however, until 1994 when Justice Stephen Breyer joined the bench. From the outset, Breyer, a former Senate staffer, made equally plain his view that legislative history was both fair game and could be highly relevant.

Indeed, Scalia’s and Breyer’s contrasting views regarding textualism in both statutory and constitutional interpretation became so celebrated that they literally took their debate on the road. To be sure, theirs was a far cry from the Lincoln-Douglas Debates on slavery 150 years earlier, but for legal scholars and Supreme Court observers, it was High Court entertainment.

During the oral arguments last month before the Supreme Court in Utility Air Regulatory Group v. EPA, Justice Breyer managed to take the debate to yet a new level. The issue before the Justices concerned the lawfulness of EPA’s regulations applying the Clean Air Act’s Prevention of Significant Deterioration Program to the emissions of greenhouse gases from new and modified stationary sources. As the Justices struggled to decipher the meaning of statutory terms and phrases that befuddle even seasoned environmental lawyers, Justice Breyer made a surprising reference. He did not merely ask what Senator Edmund Muskie, the bill’s chief sponsor, might have been intending in drafting the language at dispute before the Court. He asked what “Mr. Billings, I think, is the staff person” would have intended if faced with the policy issue that EPA now faced in trying to apply the language he drafted to greenhouse gases.

The Supreme Court courtroom was filled to capacity for the argument. Yet, I can probably safely say that fewer than ten, and likely fewer than five people in the room had any idea to whom the Justice was referring. And those few most certainly did not include any of the Justice’s colleagues on the bench or any of the advocates before him.

But for a few of us, who thrive on environmental law’s history, it was a moment of glory. The Justice was referring, of course, to Leon Billings who was Senator Ed Muskie’s chief staffer for the drafting of almost all of the nation’s path-breaking environmental laws during the 1970s, including, as the Justice correctly surmised, the Clean Air Act of 1970. The statutes were revolutionary in their reach, as they sought no less than to redefine the relationship of human activities to the nation’s environment.

Not relying merely on the soaring rhetoric of a law like the National Environmental Policy Act, these new pollution control laws got into the nitty-gritty of lawmaking. They addressed the extent to which costs, benefits, risk assessment, scientific uncertainty, and technological availability should all be relevant in determining the pollution control standards. They brokered compromises across partisan divides and remained nonetheless exceedingly ambitious and demanding in their reach.

The nation, more than four decades later, has reason to be grateful for the work of former congressional staffers like Leon Billings. Their impressive work lies in sharp contrast to that of Congresses over the past twenty plus years, which have passed no comparably significant environmental laws and done little more than deepen partisan divides even further.  For that reason, the Supreme Court shout-out to “Mr. Billings” was a great moment at the Court. And the Justice’s question an apt one too.