Rapanos, Guidelines and Deference: Wetlands Beware

The Supreme Court's last determination of what wetlands are subject to the Clean Water Act and hence may not be filled without a permit, left behind a matted mess. In Rapanos v. United States, the 4-1-4 opinion articulated two tests for when a wetland constitutes a water of the United States.  In the plurality opinion, wetlands must have “a continuous surface connection to bodies that are waters of the United States.”  Justice Kennedy's swing vote decision for the plurality's remand stated that while there needed to be a connection, it would be sufficient if there was a “significant nexus” with the waters of the U.S.; that is, it would be sufficient if the wetlands, alone or in combination with other lands in the region, would significantly affect the chemical, physical and biological characteristics of the U.S. waters. So which test should be applied?

Since Rapanos, the Seventh and Eleventh Circuits have found that Justice Kennedy’s test must be met under a “weakest link” theory – it is the narrowest grounds for the Supreme Court’s decision in Rapanos. On the other hand, the First, Eighth and recently the Third Circuits have held that if the wetlands can meet either test set forth in Rapanos, then the fill would be in violation of the Clean Water Act.

EPA and the Corp of Engineers, deciding that they needed to "clarify" things, issued a proposed guidance document to help identify waters subject to Clean Water Act jurisdiction.  The Agencies added that the proposed guidance would result in more waters being brought within their jurisdiction - a statement that is the political equivalent of poking a bear with a stick.  Predictably, the proposed guidance quickly came under attack as being an attempt by EPA and the Corp to expand their jurisdiction and to promulgate rules without following proper procedure. 

The "clarification" guidance also did not sit well with several Republican members of Congress -- John Mica, Bob Gibbs, James Inhofe and Jeff Sessions.  On November 8, 2011, these four Congressmen wrote a letter to EPA and the Army Corps of Engineers. They noted that EPA had apparently decided not to finalize the draft guidance but, rather, that the Agencies were planning to address the scope of CWA jurisdiction via rulemaking. The authors commended the agencies for deciding to follow the rulemaking procedure, but lamented that if they were simply going to incorporate the guidance documents into the rulemaking, the Agencies had effectively (and improperly) prejudged the issue, particularly given their view that the guidance “misconstrues or manipulates the legal standards announced in the Supreme Court decisions.”

The letter goes on to “encourage” the agencies to start the rulemaking process fresh, open the matter to an advanced notice of proposed rule-making to obtain public input, and to do a cost-benefit analysis of whatever proposed rule is developed. The authors sincerely hoped that the agencies would not make a “mockery of the rule-making process under the Administrative Procedure Act.”

Perhaps there is more to the letter than a gentle reminder that the Agencies shouldn't consider mocking the law.  If EPA promulgates the rule rather than issues a guidance, the inevitable challenge will be much more difficult because of the deference (frequently referred to as Chevron deference) that will attach to the rule. Deference is a powerful weapon in any agency's arsenal and anyone who seeks to diminish the power of an agency would do well to find a way to challenge that deference.   In this case, the letter is preemptively making the case that if the final rule looks like the guidance, it proves that EPA prejuged the outcome, that the rule should be thrown out and that it would be a "mockery" to allow deference to save it. Given the recent decisions regarding  deference, it just might work.  And if it does, letter-writing will be back in vogue.

(This entry is cross-posted at American College of Environmental Lawyers)

 RELATED POST: An Agency Must Earn Deference

An Agency Must Earn Deference

An agency is not entitled to deference simply because it is an agency.  It is true that agencies are more specialized than courts are.  But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it.  And that means, among many other things, that the agency must apply – rather than disregard – the relevant statutory and regulatory criteria.

Thus begins the Sixth Circuit Court of Appeals decision in Meister v. U.S. Dep’t of Agriculture.  The Court went on to hold that the Forest Service had effectively disregarded its own rules and procedures and its actions were reversed.  The interesting discussion in the opinion, however, was the Court’s finding that an agency is not entitled to automatic deference.

Attorneys who try cases against the myriad state and federal agencies constantly run into the problem that the court spots the agency ten points (in a twenty point game) before the trial even begins.  While the U.S. Supreme Court has held that deference is permissible in some instances, it is also the case that an agency is not automatically conferred such deference. The agency must reasonably interpret its rules and is required to apply all relevant statutory and regulatory criteria.

Meister is a timely reminder that the statement “Good morning Your Honor – I’m from the EPA (or DNR or IRS or any number of other acronyms), so I win,” is not the law. Sometimes courts, and administrative law judges, need to be reminded of this fact and Meister says it oh so eloquently (and quotably) when it says: “Deference must be earned.”