by Professor Kim Diana Connolly
SUNY Buffalo Law School
Every captivating story needs a plot twist. And while the story of what gets to be (has to be?) considered a jurisdictional water of the United States has not always been captivating, it has had its exciting moments (a few of which I explored in a much earlier work). In an exciting turn of events, two weeks ago the U.S. Court of Appeals for the Sixth Circuit provided a ratings boost to this extended saga.
The long story of what should be deemed “jurisdictional” waters of the United States began shortly after passage of the Clean Water Act back in the 1970s. There was an immediate skirmish as to how many and what kinds of waters Congress meant to cover under the Act. In 1975, the District Court for the District of Columbia declared that “Congress intended to assert federal jurisdiction over the nation’s waters to the maximum extent possible under the commerce clause.”
Though not appealed, this lower court decision was the first in hundreds of cases in which many courts had the opportunity to consider exactly which waters the Clean Water Act should govern. Subsequent cases have circled around this broad definition, and attempted to set some tests, or even “bright lines,” for where so-called “jurisdictional” waters begin. This wrangling has even made it to the Supreme Court a number of times, including most recently in 2006 in Rapanos v. United States. In that case, a divided plurality issued a convoluted decision that invited a sequel when it left stakeholders with a lack of certainty as to how to apply it on the ground. There were calls (based on language in various portions of the decision) for the administrative branch to step in and issue new regulations. And many more lower court cases ensued.
Cut to present day. In a brand new Clean Water Rule that went into effect on August 28, 2015, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers attempted to address these years of uncertainty, and redefine the term “waters of the United States.” The agencies provided extensive background materials and supporting documents about lengthy process and scientific support leading to this new definition. Yet the press release announcing the new rule foreshadowed the issues it faces now. While its title declared that “Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy,” its lead screamed in large print that the rule “[d]oes not create any new permitting requirements and maintains all previous exemptions and exclusions.” Much hullabaloo ensued. People on all sides (including we law professors who just love to have opportunities to write more footnotes) weighed in with strong opinions. And many parties filed lawsuits.
Those who needed to deal with the new rule worked hard to get ready. In the months leading up to its official deployment, trainings to support the move to the new rule were rampant. These trainings came from the federal agencies, and from various experts, such as the Association of State Wetland Managers, as well as from myriad various private actors. Meanwhile, the law suits percolated along, and jurisdictional nerds watched closely.
Then, the latest big plot twist. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of the Rule based on a petition from 18 states. This stay effectively halts the enforcement of the Rule. The petitioners had challenged the new rule on many theories, including that it granted too much federal jurisdiction over what has previously been thought of as state-controlled waters, that it was not in line with existing precedent, and that its adoption failed to follow mandatory federal rulemaking procedures. Oral arguments will be heard on December 8th in this matter.
The court, in granting petitioners’ stay, acknowledged that petitioners’ arguments had the possibility of success. But, it turns out that it is not entirely clear whether challenges to the rule are properly in Circuit court to begin with, or whether federal district courts might be the appropriate venue. So another possible plot twist is out there as that matter is explored.
Scholars are, of course, doing what we do…debating many aspects of the Sixth Circuit stay (see, for example, Professor Oren, who says “all of this may turn out to be a tempest in a teapot”) and Professor Adler, who notes “there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts”, and many others). We professors will continue to watch and write footnotes and be excited from the sidelines (though note that those of us who are clinical law teachers may be in the mix more directly with our students lawyering on behalf of clients).
Meanwhile, the usual stakeholder representatives on all sides are making impassioned arguments as to how this story should unfold, while at the same time trying to figure out how to continue or delay activities proposed to take place in potentially jurisdictional waters. And the fact of the matter is that, while there may be short-term answers soon, longer-term answers are not going to be easy to come by.
As I have mentioned in previous work, a “happily ever after” ending in the Clean Water Act jurisdiction debate may not ever be possible. In that piece from eight years ago, I wrote that “[t]he controversial history of the Section 404 permitting program, as well as a cursory examination of the current situation, easily could lead to the conclusion that the stakeholders have become so divided and the battles so embittered that no functional zone of potential agreement exists.” And while I wrote “current” many years ago, this statement still holds true.
But the plot twist offered by the Sixth Circuit may give us another chance to reflect, together, on whether there is a way to come to some sort of peace. It may still be possible to interpret language enacted over four decades ago in a way that provides both predictability and protection in appropriate measure for activities on the edges of where water ends and land begins. If so, it may be conceivable that those attempting to govern could be provided a framework with a sense of certainty as to the road ahead. The next step in this process will be oral arguments on this matter before the Sixth Circuit in Cincinnati on December 8th.
Bear in mind that, if “happily ever after” actually happens, this soap opera might enter its final season, and all the actors who have played parts big and small in the controversy itself may have to find other work. So, let’s watch this plot twist carefully, to see if indeed it is the beginning of a final chapter to this decades-old debate, or just another episode of “How the Wetlands Turn.”