Supreme Court nominee asked about landmark wetland case

1 Jul 2010

Every now and then in between discussions of chinese food and Twilight, the Senate Judiciary Committee asks a really meaningful question.  On Tuesday,  environmental law briefly came to the fore. One might have expected a question regarding BP but instead, a question was asked about a wetland case with Michigan roots.

Senator  Dianne Feinstein (D-CA) asked Elena Kagan Tuesday about the Rapanos case  which I have blogged on before.   The question related to the degree to which courts defer to agency constructions of statutes and the Senator pointed to a 2006 Supreme Court decision regarding the Clean Water Act (CWA) that arguably left intermittent seasonal streams and isolated wetlands unprotected by federal law.

Ms. Kagan told Senator Feinstein she did not know the specific decision and then explained the general principles of judicial deference to agency constructions of statutes.  She correctly referred to the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

The question is interesting to me, as having represented Mr. Rapanos following the Supreme Court’s remand, because five members of the Supreme Court agreed that the CWA as written could not support the agency’s interpretation which was that there was federal jurisdiction over any water (even underground water) that was in any way connected (however remotely) to a surface water body over which the federal government did have jurisdiction.  The Court held that it didn’t and correctly applied Chevron to hold that the Army Corps’ interpretation was not entitled to deference.  The Army Corps recognized this and has adopted new guidance applying the Rapanos decision.  One wonders what Senator Feinstein was thinking when she chose that question to ask.

Leave a Comment to “Supreme Court nominee asked about landmark wetland case”

  1. Arthur Siegal 20. Jul, 2010 at 8:28 am #

    you certainly can, with attribution – please include a link a to our blog

Leave a Reply