January 12, 2023

Backwards, forwards, square, and round. The battle over the reach of the Federal Clean Water Act continues.

Posted on January 12, 2023 by Jeff Porter

Backwards, forwards, square and round.  So goes a lyric by the late great Jeff Beck who died this week. Mr. Beck wasn’t writing about the decades long war over the jurisdictional reach of the Federal Clean Water Act but the shoe certainly fits.

Over three months after oral argument before the United States Supreme Court in its most recent wade into Clean Water Act jurisdictional waters, EPA has now formally taken its eighth swing at resolving the reach of the Clean Water Act.  

Within days of EPA’s December 30 publication of its most recent jurisdictional rule, both the Acting Solicitor General of the United States and the attorney for the Sacketts of Idaho, whose house lot which may or may not be covered by the Act, were writing to the Supreme Court about why EPA’s most recent action should or shouldn’t influence the Supreme Court’s pending decision.

Of course if the Supreme Court was inclined to defer to EPA it wouldn’t have heard the Sackett case to begin with.

My friend, Seth Jaffe, writes that EPA (and the Army Corps of Engineers) “explain[  ] fairly clearly why the rule is consistent with the statutory language and the science in this area.”

Of course “consistent with” is different than “authorized by” which is why EPA and the Courts have struggled with the reach of the Clean Water Act for decades while Congress has continued to sit on its hands.

The new “consistent” rule codifies both Justice Kennedy’s “significant nexus” test for determining the reach of the Clean Water Act and the late Justice Scalia’s narrower “continuous surface connection” test for determining the same thing.  

Justice Kennedy’s test didn’t command the support of a majority of the Supreme Court sixteen years ago and three of the Justices who rejected that test then (including the Chief Justice) have been joined by conservative Justices Gorsuch, Kavanaugh and Coney Barrett. That’s why I think the conservative majority of the Court is likely to reject Justice Kennedy’s test and adopt Justice Scalia’s test, notwithstanding EPA’s preference that it do something else.

Interestingly, it is “adjacency” to a Water of the United States that is the focus of the most recent exchange between the Acting Solicitor General and the Sacketts’ attorney.   That could be read to suggest that even EPA is concerned about the continued viability of the “significant nexus” test notwithstanding the substance of EPA’s year end rule.

Of course deliberations about what is “consistent with” Congress’s intention a half century ago would be preempted by Congress answering the question that has plagued the Executive and Judicial Branch for decades. I don’t think anyone expects that any time soon.   So we can look forward to litigation over EPA’s new rule later this winter.