Circuit courts split on wetlands – not one takes the winning side

16 Jan 2012

I’ve blogged before about the Rapanos decision and its somewhat unusual 4-1-4 split among the Justices. In short, the winning four (the plurality) via Justice Scalia, held that only relatively permanent wetlands which blur or blend at the surface into relatively permanent waterways fall under federal jurisdiction. The losing four, led by Justice Stevens, held that any hydrologic connection was sufficient to vest the federal government with jurisdiction under the Clean Water Act. And Justice Kennedy came up with his own test, the “substantial nexus” test, which is more subjective than the other two.

Many of us have argued under long standing precedent that, despite the lack of a clear judicial rule, the Scalia test should apply.

The federal courts of appeals have their own ideas, however, with the Eleventh, and Third Circuit Courts of Appeals all finding federal jurisdiction when either the Scalia or Kennedy test is met, while the First, Fourth, Seventh, and Eighth Circuits have held that only the Kennedy test is to be used.

The argument turns on a 1977 Supreme Court decision that holds that when there is no majority, the lower courts should rely on the narrowest position that would get five votes.  This is a very open question and the courts have been stymied by it.  Many courts have avoided the question of which rule applies by finding that both tests are satisfied.  I’ve yet to see a case that holds that the Scalia test, which got 4 votes is the lone test that should be applied.

I find it sadly ironic that a decision of four members of the Supreme Court is ignored in favor of the losing side and a lone justice on the winning side.  It appears that the federal appellate courts have chosen to ignore the Rapanos holding in favor of further deference to the Corps and EPA.



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