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.



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