Retiring Justice Kennedy Shaped Clean Water Act’s Boundaries

June 27, 2018, 9:53 PM

Supreme Court Justice Anthony Kennedy, who announced his retirement June 27, played a prominent role in forming the nation’s environmental policies, including shaping the jurisdiction of the Clean Water Act.

Kennedy was described by environmental lawyers as focused on states’ rights and centrism during his three decades on the high court.

“His leaving will doubtless have a major bearing on the outcome of the litigation” over the Waters of the U.S. rule, Pat Parenteau, professor at Vermont Law School, said.

Kennedy “showed enough interest to learn something about the science underlying environmental problems and the complexity of trying to regulate the myriad activities that create them,” Parenteau told Bloomberg Environment in an email.

Defining Navigable Waters

Kennedy’s concurrence in the 2006 case Rapanos v. U.S. is the most significant environmental opinion of his Supreme Court career, attorneys said.

In the 4-4-1 decision, Kennedy concluded that a water or wetland is considered “navigable waters” under the Clean Water Act if it has a “significant nexus” to “waters that are navigable in fact or that could reasonably be so made.”

Kennedy’s opinion turned out to be the linchpin for the Obama administration’s attempt, through the Clean Water Rule, to define what is meant by “waters of the U.S.” or WOTUS.

The 2015 WOTUS rule rested heavily on Kennedy’s significant nexus test, in which he sought to establish jurisdiction over isolated wetlands that aren’t directly connected to traditional navigable waters like rivers and lakes, but were still determined by the agencies to affect downstream waters.

“Extending Clean Water Act applicability to wetlands where there is a ‘significant nexus’ to jurisdictional waters has had a significant and lasting effect on environmental law,” Sarah Peterman Bell, a partner with the San Francisco office of Farella Braun & Martel LLP, said in an email to Bloomberg Environment. “As we now see in the WOTUS rulemaking and in the recent indirect discharge opinions out of the 4th and 9th Circuits.”

Kennedy’s opinion is “the controlling test for evaluating what waters are protected under the CWA,” Parenteau said.

Wastewater Case

In 2009’s Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Kennedy wrote the majority opinion, holding that the Army Corps of Engineers and not the EPA had proper authority to grant permits allowing Coeur Alaska Inc., a gold mining company, to discharge processed wastewater into Lower Slate Lake in Alaska.

Even without authoring opinions, Kennedy helped tip the scales on other environmental policies.

In Massachusetts v. EPA, Kennedy joined the 5-4 majority opinion in 2007 when the court held that the EPA could regulate greenhouse gases as air pollutants under the Clean Air Act.

In the case, the EPA believed that Congress didn’t intend the agency to regulate substances that cause climate change.

It was a “critical case that forced EPA to start respecting the Clean Air Act and engage with science,” said William W. Buzbee, an environmental professor at Georgetown University Law Center. “That case thereby jumpstarted EPA regulation of greenhouse gas emissions contributing to climate change.”

Looking to the Future

During his first 18 years on the court, Kennedy was in the majority 97 percent of the time in environmental and natural resources law cases—compared to his overall record of being in the majority slightly over 60 percent of the time on all cases, according to a 2007 Washington Law Review article last revised in 2015.

“I think he was the person all environmental advocates tried to focus their arguments towards,” said Michael Blumm, an environmental law professor at Lewis & Clark Law School who wrote the article.

“I’m very fearful there’s no real moderation on the conservative side of the court,” Blumm told Bloomberg Environment.

“Justice Kennedy was clearly the swing vote on a lot of issues, including environmental cases,” said Makram B. Jaber, partner with Hunton Andrews Kurth LLP in Washington. “So his replacement would likely make a difference on some cases.”

“If Justice Kennedy is replaced by another justice who is more like Justice [Neil] Gorsuch, [Samuel] Alito, or [Chief Justice John] Roberts, then the idea that regulatory agencies can invent authorities for themselves will be off the table,” Jeffrey R. Holmstead, partner with Houston-based Bracewell LLP who served as EPA’s assistant administrator for air and radiation under President George W. Bush, said.

Holmstead was referring to Section 115 of the Clean Air Act, which some have said could be used as the basis for creating a nationwide cap and trade program for all sources of carbon dioxide.

“His replacement is sure to be more in the mold of the late Justice [Antonin] Scalia—with whom Kennedy sometimes clashed—and perhaps even more conservative than Justice Gorsuch,” Parenteau said. “Whoever it is will sail though confirmation and be there for a very long time.”

Kennedy was nominated to the court by President Ronald Reagan in 1987 and confirmed the next year.

“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy said in statement.

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com

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