By Christian Flinn
The Obama Administration and its implementation of the Clean Water Act (CWA) have been consistently derided over the past few years. Critics decry the vague nature of the law’s tenets and the opportunities they create for government overreach. Most recently, the Hawkes Company – a firm that mines peat for golf courses – has challenged a “jurisdictional determination” made by the U.S. Army Corps of Engineers (the Corps). The challenge concerns a piece of land in Minnesota the Corps claims is covered by the CWA. The determination was made because the land in question is composed of wetlands (marshes, swamps, etc) that, despite being 120 miles from the nearest “navigable waterway,” ultimately connect to the Red River. As such, the Corps claims it could pose a contamination threat. While the determination does not outright preclude any sort of mining operation on the land, it does impose a permit requirement on Hawkes – the obtaining of which is a costly process that can take years.
Hawkes first met with State and Federal regulators in 2007 to discuss expanding its mining operation in Minnesota. The case is representative of the grievances many have with what has been called the convoluted process by which the government makes CWA determinations. The CWA explicitly prohibits the “discharge [of] any pollutant from a point source into navigable waters, unless a permit was obtained.” This protection covers wetlands – a label that is sometimes easily applied, as with the Florida everglades – but also allows for case-by-case determination of regulatory coverage of seasonally flooded areas and smaller soggy regions. Hawkes’ suit – filed with the Supreme Court in September 2015 – takes issue with the ambiguity of the determination process. Justifying the complaint, however, has proven to be an uphill battle.
At first a district court dismissed the case, ruling that "jurisdictional determination" did not qualify as a "final agency action" that could be challenged in court. This decision would have essentially forced Hawkes to go through the Corps’ permitting process before being able to challenge the requirement of a permit in court. This raised some eyebrows in higher courts and, in a 2012 ruling by the St. Louis-based 8th Circuit Court of Appeals, the decision was overturned – allowing court review of jurisdictional determination. A Supreme Court ruling on the matter may well be necessary because of a previous contradictory ruling in the 5th Circuit Court of Appeals.
Following the death of former Supreme Court Justice Antonin Scalia, an influential conservative, some doubt surrounds the court’s willingness to challenge agency decisions. Comments made during oral arguments on March 30th by Justices Kagan, Breyer, Kennedy, and Sotomayor would seem to dispel those doubts. At that point, the Court as a whole pushed Deputy Solicitor General Malcolm Stewart (arguing on behalf of the government) to explain the reasoning behind the apparent legal imperviousness of the jurisdictional determination process. It was during his questioning that Justice Kagan offered her insight, claiming she saw the defense against court challenges as a means to allow agencies to offer informal advice or opinions and have their interpretations respected. Justice Kennedy then articulated his understanding of Hawkes’ argument by stating, “the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice.” While Justice Breyer did not go quite as far, he did criticize the permitting process once the determination is made that forces companies to either “spend $150,000 to try to get an exception and fail, or…do nothing, violate it, and possibly go to prison.” The Justice believed these options made the issue “perfectly suited for review in the courts.” Even Justice Sotomayor, in a comment that surprised many liberals, asked about “the narrowest way to right this that the government would like.” At first glance, the Supreme Court is thus inclined to at least consider Hawkes’ argument.
The historical precedent behind some of these comments, however, raises the question of whether or not the court is willing to overturn jurisdictional determination’s protection from legal rulings or simply alter the permitting process it requires. Justice Kennedy’s statement, for example, contradicted his previous concurrence with the 2006 decision in Rapanos vs. U.S. At the time, his opinion supported the vagueness inherent in the CWA by arguing the government could assert jurisdiction over any waters with a “substantial nexis” to “navigable waterways” – the exact language of the act and the cause of many complaints similar to Hawkes’. Meanwhile, Justice Ginsburg decried the “very arduous and very expensive” nature of the permitting process during oral arguments but gave no opinion as to whether this meant jurisdictional determination or the permitting process itself was the biggest offender. Such general ambiguity may be the result of the Court not wishing to publish its internal thinking on the matter. It may also indicate a preference for agency-proposed changes rather than some that may – or may not – be forced through by a Supreme Court that is short one Justice.
For more information, please contact Christian Flinn at Christian.Flinn@warwickconsultants.net.