Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won’t matter much.
Before I explain the reasons for that prediction, a little context may be helpful. The Clean Water Rule (also sometimes referred to as the Waters of the United States Rule (or just WOTUS)) determines the geographic scope of federal jurisdiction under the Clean Water Act. The Army Corps and EPA jointly released the rule last summer. Its most controversial provisions retain, with minor adjustments, existing jurisdictional practices for small-ish wetlands and streams. Most of the rule’s opponents (a combination of states and regulated industries) were hoping for narrower jurisdiction, and they filed many lawsuits challenging the rule. Some environmental groups, while generally supportive of the rule, objected to a few provisions they thought narrowed jurisdiction too much, and they, too, have sued.
The challenges will be decided by the Sixth Circuit Court of Appeals, which recently and somewhat grudgingly ruledthat it did have jurisdiction over the cases. I think the outcome before the Sixth Circuit will likely turn on one of two questions: first, was the final rule a logical outgrowth of the proposed rule, or were changes in the final rule sufficiently unexpected that they deprived interested parties of their opportunity to comment? And, second, is the rule consistent with the text of the Clean Water Act, as interpreted by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States? After the Sixth Circuit decides on those issues, cert petitions seem likely. And a grant of cert would surprise no one (particularly if the Sixth Circuit decision turns on the second question above; the first might seem more fact-bound and less cert-worthy).
If a case is likely to wind up at the Supreme Court, and if the underlying issues have closely divided the Court in the past, a change in the composition of the Court would seem to be very important. So why not here? It helps to consider a few different scenarios through which the case could reach the Court.
Scenario 1: The Sixth Circuit upholds the Clean Water Rule, and cert petitions are decided by an eight-member Court. This scenario could occur if the Sixth Circuit decides the case exceedingly quickly, or if the appointment stalemate drags on well into the next administration. If that happens, then a denial of cert seems likely—there would probably be a minimum of four strong votes to affirm the Sixth Circuit, and therefore little appetite for further review—and the Sixth Circuit decision would stand. And the change in Court composition would turn out to matter.
But this scenario isn’t likely. Many months will likely pass before the Sixth Circuit issues an opinion, and a petition for cert will probably be reviewed by a nine-member Court. I’m also mildly pessimistic about the rule’s chances before the Sixth Circuit. The current panel has two Republican appointees–an imperfect indicator of inclinations, but not a meaningless one–and that panel already has stayed the rule and sent some signals of concern about its legality. I do not think those signals are justified, but it’s the judges, not me, who will decide the case.
Scenario 2: The Sixth Circuit sets aside the Clean Water Rule, and cert petitions are decided by an eight-member Court. In this circumstance, I think Supreme Court review is more likely. The four liberal justices would likely want to reverse the Sixth Circuit and uphold the rule, and they might reasonably hope that Justice Kennedy would eventually join them. Consequently, the outcome of the case would likely come down to Justice Kennedy’s vote—just as it would have if Justice Scalia still were a member of the Court.
And (here comes the bolder part of the prediction) I think Justice Kennedy will vote to uphold the rule. His Rapanosopinion seems to me to reflect three basic concerns: he wouldn't mind some boundaries on federal authority; he wants a science-based rule; and he wants a rule consistent with the basic goals of the Clean Water Act. This rule may do less than Justice Kennedy might like to limit federal authority. But, as mountains of record evidence make pretty clear, EPA couldn’t limit federal authority very much while also writing a strongly science-based rule and respecting the goals of the Clean Water Act. In past cases, Justice Kennedy has acknowledged that his commitments to state empowerment sometimes need to give way to other values, and I think—and hope—he’d say the same thing here.
(I’ve also argued elsewhere that states actually have a lot of influence over what EPA and the Army Corps do within the boundaries of their jurisdiction, which suggests that a proponent of a strong state role could be comfortable with broad federal jurisdiction. But that’s a little tangential here.)
Scenario 3: A nine-member Court, with five Republican appointees and four Democratic appointees, hears the petition for cert and decides the case. This circumstance is likely to produce a similar outcome to scenario 2. There still would be four votes to grant cert; the liberals still would have a reasonable hope of bringing Justice Kennedy to their side, and Justice Kennedy still would be the deciding vote. He’d have one more colleague asking him to join the conservative bloc, but he seems to make up his own mind.
Scenario 4: A nine-member Court, with five Democratic appointees and four Republican appointees, hears the petition for cert and decides the case. This might seem to be a very different scenario, for Justice Kennedy now would no longer be the tiebreaking vote, and the rule would probably be upheld. Indeed, one might think, at first, that the rule would be upheld under a rationale that gives EPA and the Army Corps more latitude to regulate broadly. But EPA and the Army Corps themselves have largely foreclosed that possibility. In crafting the rule, EPA and the Army Corps adopted Justice Kennedy’s “significant nexus” standard as governing law. They clearly put a high priority on writing a rule that Justice Kennedy would vote to uphold, and building a record that would convince him to uphold it. With a reconstituted and more liberal Court, EPA and the Army Corps probably could assert jurisdiction more broadly. But they had no way of knowing that Court might be coming—and it still might not come—so they decided, quite reasonably, to make Justice Kennedy the deciding vote before the rulemaking even began.
Other scenarios are possible, of course; we live in an unpredictable world. But if the scenarios above exhaust the most likely possibilities, I think the bottom line is that for Clean Water Act jurisdiction, at least, Justice Kennedy is still the deciding vote.