On May 31, 2016, the U.S. Supreme Court of Appeals issued the opinion in United States Army Corps of Engineers v. Hawkes Co., Inc, et al. (No. 15-290). This is a unanimous opinion which is noteworthy since the Court is thought to be of an evenly split philosophy of conservatives and liberals and therefore incapable of unanimity.

The tangible result of the opinion is that one may seek judicial review of a U.S. Army Corps of Engineers’ approved jurisdictional determination of areas saturated with water (i.e., mudflats, sandflats, wetlands, sloughs, prairie potholes, we meadows, and playa lakes) as meeting the definition of waters of the United States and therefore trigger permitting and enforcement authorities.

There are comments and observations offered within the opinion and concurrences that warrant highlighting.

New WOTUS Definition is Stayed.  

Chief Justice Roberts wrote the opinion and reminds the reader that “In 2015, the Corps adopted a new rule modifying the definition of the scope of waters covered by the Clean Water Act in light of scientific research and decisions of this Court interpreting the Act. . . . that rule is currently stayed nationwide, pending resolution of claims that the rule is arbitrary, capricious, and contrary to law.” This statement communicates the Court’s acknowledgement that there likely is more to come before it concerning the Clean Water Act.

Regulated Community Has Difficulty in Knowing Scope of CWA.

“It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.” This characteristic of complexity in implementation of the CWA is not favored by the Court.

Costs and Time are an Important Part of the Regulatory Program “Corps officials signaled that the permitting process would be very expensive and take years to complete.” “As Corps officials indicated in their discussions with respondents, the permitting process can be arduous, expensive, and long.” “The permitting process adds nothing to the JD.” Significant monetary expense and the passage of time with no obvious benefit are not favored by the Court.

Safe Harbor.

The Court references “legal consequences” and the ability of the property owner to know of the pragmatic impacts of an approved jurisdictional determination, whether negative of affirmative. The Court favors the regulated person having a clear understanding of the government’s opinion of the applicability of the CWA to their operations and therefore the potential legal consequences.

Judicial Review and Due Process. “As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” This statement is self-explanatory.

CWA Scope.

“But as the Corps acknowledges, the Clean Water Act makes no reference to standalone jurisdictional determinations, ibid., so there is little basis for inferring anything from it concerning the reviewability of such distinct final agency action.” The Court signals that inferred interpretations of the statute warrant little weight when due process is at risk.

Concurrences are offered by the Justices.

Kennedy, Thomas and Alito provide that “the Act’s reach is “notoriously unclear” with references to the Agency’s assertion of “unfettered discretion” ; “ominous reach would again be unchecked”; “due process”, and “troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” These words are repeated in other opinions of the Court relative to environmental statutes and will likely be used again.

Justice Kagan’s concurrence references finality of agency decisions and safe harbors.

Justice Ginsburg emphasizes the finality of the jurisdictional determination and appropriate review and cautions against the Court’s too heavy a reliance on the MOA between the USCOE and USEPA.

In conclusion, this Court appears to stand ready for the next round of environmental litigation which will be the Clean Power Plan. The Court has stayed the Clean Power Plan until it can review it. Borrowing from this opinion, one can see a U.S. Supreme Court assessment of factors that may include: a regulatory program readily understood by the impacted person; costs and time that result in value added; legal consequences and pragmatic impact on the regulated person; the role of statutory inferences; and finally, due process.