The Dean of Environmental Law bloggers, Seth Jaffe, does me the honor of a thoughtful response to my concern about whether EPA's and the Army Corps of Engineers' proposed definition of Waters of the United States, and therefore its proposed definition of the reach of the Clean Water Act, exceeds Congress's authority granted by the Commerce Clause in the United States Constitution. I agree with Seth that there have been moments in the last hundred years when EPA's and the Corps' proposed definition would have survived that inquiry. And I think he is begrudgingly admitting that the outcome of such an inquiry is uncertain given the current composition of the Supreme Court.
But I entirely agree with Seth that there is also cause for concern that the Supreme Court might not agree that Congress intended to authorize EPA and the Corps to expand the reach of the Clean Water Act in the way they are proposing. The last time the Supreme Court considered whether a Corps interpretation of the Act passed muster, the late Justice Scalia, joined by three other Justices, wrote "[i]n any event, a Comprehensive National Wetland Protection Act is not before us, and the 'wis[dom]' of such a statute [internal citation omitted] is beyond our ken. What is clear, however is that Congress did not enact one when it granted the Corps jurisdiction of the 'Waters of the United States' (emphasis in original)."
Chief Justice Roberts joined that opinion of the Court. Three of the four dissenting Justices have been replaced with Justices who anyone would have to admit have more in common with Justice Scalia than their predecessors.
But this too begs the real question. Do we really need to endure more statute-based challenges to a science-based approach to protecting our nation's waters because it isn't clear whether that approach was blessed by Members of Congress in 1972? Since the Executive and Judicial Branches of our Government have been struggling with the language of Congress's statute for decades, don't we deserve its response to what has transpired in the meantime?