EPA Isn’t Giving up On the Significant Nexus Test but There’s Already a Lot of Water Under that Bridge!

Stunning nobody, attorneys for EPA and the US Military Corps of Engineers have implored the Supreme Court docket to affirm the Ninth Circuit Court docket of Appeals’ utility of Justice Kennedy’s “significant nexus” take a look at for figuring out the attain of the Clear Water Act in the Authorities’s newest skirmish with the Sacketts of Idaho about whether or not their home lot is or is not a Water of the United States.   

As many of , the Sacketts are in the distinctive place of having the Supreme Court docket agree to listen to from them not as soon as but twice throughout their decade and a half lengthy tangle with EPA over filling on their lower than one acre lot which can or might not be deemed “adjacent” to Priest Lake, a Water of the United States.  On October 3, its first day of oral argument in the fall time period, the Supreme Court docket will hear extra from the Authorities and the Sacketts on whether or not a wetland separated from an unnamed tributary to Priest Lake by a highway can be a Water of the United States.

Studying the Authorities’s transient is an environment friendly solution to catch up on 40 years of dereliction by Congress and what has occurred in the courts and at EPA and the Corps in the meantime.   

It’s most actually true, as the Authorities’s transient experiences, that in 2006 now Chief Justice Roberts prompt that discover and remark rule making by the Authorities may need averted Supreme Court docket meddling in EPA’s interpretation of the Clear Water Act.

However it stays to be seen whether or not the Chief Justice nonetheless has the similar religion in rule making he had in 2006 in the face of the three contradictory “significant rulemakings” between 2015 and 2020 that the United States references in its transient.  As many of , the first of these rulemakings materially expanded the attain of the Clear Water Act, the second materially contracted it, and the third would restore it to nearly the similar extent as the 2015 rule making.  All three guidelines purport to be per prior opinions of the Supreme Court docket.   

The actual fact is that the “significant nexus” take a look at the Authorities advocates did not command the help of a majority of the Supreme Court docket at the outset.  Three of the Justices who rejected that take a look at then (together with the Chief Justice) are all nonetheless of their seats, joined by Conservative Justices Gorsuch, Kavanaugh and Coney Barrett.

Add to that the truth that in the final time period the Supreme Court docket overturned fifteen of the sixteen Ninth Circuit choices it reviewed and also you get a fairly clear image of the uphill battle the Authorities faces in advocating that the Supreme Court docket ought to depart EPA, the Corps and the Ninth Circuit alone.

I feel the Authorities’s attorneys see that writing on the wall which is why the Authorities additionally argues that the Sacketts’ property is adjoining to a Water of the United States.  Sure, the Authorities’s assertion of adjacency is hinged to its help of the “significant nexus” take a look at but it permits for the Court docket to fall again on pre-significant nexus precedent permitting the regulation of adjoining wetlands underneath the Clear Water Act. 

The Authorities additionally tells the Court docket that the “mere presence” of a barrier, like a highway, should not stand in the method of Clear Water Act protection if there may be a important nexus between the would-be jurisdictional space and a Water of the United States.  That appears a lot like Justice Breyer’s “functional equivalence” pondering adopted by the Court docket in the Maui Clear Water Act case in holding that a discharge to groundwater is roofed by the Act whether it is the purposeful equal of a direct discharge.   There’s a very actual query whether or not the present Court docket would come out in the similar place on that query.

Will the Supreme Court docket defer to the Ninth Circuit and EPA?  I feel there’s been an excessive amount of water over that bridge but the Authorities has carried out the finest it will probably with what it has been handed as the longest working controversy in environmental legislation continues.

EPA is urging the Supreme Court docket to reject Idaho landowners’ most well-liked take a look at for figuring out wetlands topic to the Clear Water Act (CWA), arguing that a customary based mostly on “continuous surface connections” between waters will result in “a host of thorny questions and potentially arbitrary results” whereas defending the broader “significant nexus” take a look at.


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