Mary Lynn Coffee Quoted in, "Ninth Circuit Ruling Hints at Bumpy Road For Water Rule Redo"

Nossaman Environment and Land Use Partner Mary Lynn Coffee was quoted in the Law360 article, Ninth Circuit Ruling Hints at Bumpy Road For Water Rule Redo.  The article examines the recent Ninth Circuit ruling on the federal government’s enforcement power under the Clean Water Act, which highlighted a few of the legal obstacles that could confront the Trump administration as it creates a replacement to the Obama administration’s waters of the U.S. rule. 

In the ruling in U.S. v. Joseph David Robertson, the Ninth Circuit  upheld the conviction of a man who polluted a Montana river—and the appeal hinged on the U.S. Supreme Court’s interpretation of waters of the U.S. In its interpretation, the Ninth Circuit relied on Justice Anthony Kennedy’s definition that came out of the 2006 case Rapanos v. U.S.  The Rapanos case split the justices 4-1-4, and Justice Kennedy said in his solo opinion that CWA coverage depends on whether a body of water has a ‘‘significant nexus’’ to downstream traditional navigable waters and is important to protecting the chemical, physical or biological integrity of the navigable water.  Justice Scalia had a different take, stating  in a plurality opinion that the regulatory authority vested in the EPA and U.S. Army Corps of Engineers should  apply to relatively permanent, standing or continuously flowing bodies of water connected to traditional navigable waters, and to wetlands with a continuous surface connection to those types of waters.  The Ninth Circuit found (as numerous other courts have) that Kennedy’s definition is the correct definition to apply.  To reach that conclusion, it looked to the high court’s guidance from 1977’s Marks v. United States, which explained that when lower courts are presented with a divided Supreme Court opinion  such as the one in  the Rapanos matter The holding of the court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.

In the article, Ms. Coffee commented that in the Robertson case although Justice Kennedy sided with  Justice Scalia in the overall outcome of the case, his waters of the U.S. definition was more in line with that of the four justices in the minority, and therefore many of the circuit courts and EPA and the Army Corps have come to use his test when they are faced with a project developer or landowner seeking clarification about whether their property is subject to CWA regulation.  And it’s that interpretation that’s going to pose a problem for a Trump administration rule that relies on Scalia’s test.  She added that I think it will be an uphill battle for the Trump administration to try to adopt a rule based only on the Scalia opinion… Not just in light of Marks alone, but now we have this additional precedent from the Ninth Circuit, and the other circuits and the expert agencies that have ruled that the Kennedy test is an appropriate test.  [A Scalia based rule] may be possible, but that’s just not been the position of the majority of legal precedent to date.