On May 31, 2016, the United States Supreme Court issued its decision in United States Army Corps of Engineers v. Hawkes Co., Inc. holding that approved judicial determinations as to the presence of wetlands issued by the Corps of Engineers constitute “final agency action,” which allows property owners to seek judicial review. As a result of this decision, property owners no longer face the twin dilemma of (a) proceeding to develop what they believe to be uplands only to face potential civil and criminal enforcement by the Corps of Engineers and/or the U.S. Environmental Protection Agency or (b) applying for a section 404 permit, thereby conceding the existence of wetlands and incurring the cost of protracted, costly ecological studies. See my prior article Bypassing Scylla and Charybdis: Pre-enforcement Judicial Review of Wetlands Determinations Under the Clean Water Act.
Given the court’s unanimous decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), the outcome in Hawkes is not surprising. Justice Roberts wrote the decision in which Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined. Justice Kagan filed a concurring opinion and Justice Ginsberg filed an opinion concurring in part and concurring in the judgment. There were no dissents among the currently-constituted eight member court. The interesting and portentous aspect, however, is the concurring opinion written by Justice Kennedy in which Justices Thomas and Alito concurred.
Recall that Justice Kennedy articulated the “significant nexus” test of jurisdiction under the Clean Water Act as the concurring-in-the result (but not in the rationale) vote in Rapanos v. United States, 547 U.S. 715 (2006). As a result, the EPA and the Corps of Engineers developed a new definition of the “waters of the United States,” which it announced as the Clean Water Rule in 2015. This new definition was written to meet the “significant nexus” analysis as described by Justice Kennedy and as supplemented by the agencies. See my prior article Definition of “Waters of the United States” Under the Clean Water Act (CWA).
The EPA and the Corps jointly regulate and enforce activities and development in wetlands under the CWA. Enforcement of the new definition has been stayed nationwide pending legal challenges in the Sixth Circuit Court of Appeals and in other federal district courts. See my prior article WOTUS: Nationwide Stay of Proceedings. Eventually the challenge to the new definition of the “waters of the United States,” which is to say the jurisdiction of the CWA, will reach the Supreme Court. How Justice Kennedy will view that definition is very likely to matter a lot. (The new definition was not before the Supreme Court in Hawkes.)
Justice Kennedy’s concurring opinion in Hawkes would appear to foreshadow a rough road for the new definition. Justice Kennedy’s opinion begins with the statement that he joins the Court’s opinion “in full” not as a qualification, but rather as a point of emphasis because “ . . . the reach and systemic consequences of the Clean Water Act remain a cause of concern.” Justice Kennedy cites Justice Alito’s statement for the proposition that the reach of the CWA is “notoriously unclear.” Justice Alito was part of the plurality opinion in Rapanos that would have overturned the prior definition of the “waters of the United States” with just one more vote. See my prior article Rapanos v. United States: The Narrow View, The Broad View, and the Search for the Significant Nexus to Clean Water Act Jurisdiction.
Justice Kennedy’s short concurrence in Hawkes concludes with his observation that the CWA “ . . . especially without the [jurisdictional determination] procedure were the government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” How significant is Justice Kennedy’s qualification (“ . . . especially without the JD procedure were the government permitted to foreclose it . . .”)? And what will be the composition of the Supreme Court when the ninth justice is appointed to take the place of Justice Scalia, who authored the plurality opinion in Rapanos? It is likely to take two more Supreme Court terms before the answer will become known.
