Thursday, April 12, 2012

The Disappearing and Reappearing Ambiguity of Section 404

Consider a few quotes from two recent opinions addressing section 404 of the Clean Water Act.  The same justice couldn't possibly have signed on to both, could he?

Opinion 1:

"The plain language of the statute simply does not authorize this 'Land is Waters' approach to federal jurisdiction."

"Plainly, because such 'waters' had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows."

"Moreover, only the foregoing definition of 'waters' is consistent with the CWA's stated [policy of preserving the states' primary responsibility for water resource and land use planning]."

"Even if the term 'the waters of the United States' were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity." (parentheses in the original opinion)

Opinion 2:

"The reach of the Clean Water Act is notoriously unclear."

"Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act."

"But Congress did not define what it meant by "the waters of the United States," the phrase was not a term of art with a known meaning, and the words themselves are hopelessly indeterminate."

That's just a sampling, and the words aren't taken out of context.  The former opinion rejects EPA's interpretation of the statutory definition of "navigable waters" without ever conceding that the definition is ambiguous (the dissent argued that the language was ambiguous and that the Corps' interpretation should be upheld at Chevron step two, but the plurality never got past Chevron step one).  The latter opinion is entirely devoted to castigating Congress for writing so ambiguous a definition.

Of course, the same justice did sign on to both opinions.  The former quotes are from Justice Scalia's plurality opinion in Rapanos v. United States, which Justice Alito joined.  The latter quotes are from Justice Alito's concurrence in Sackett v. EPA (which no other justice joined).  Six years elapsed between the cases, but the relevant statutory language has not changed.

There is a way of trying to reconcile the two opinions, which Justice Alito hints at in his Sackett concurrence.  Perhaps Justice Alito views Rapanos as holding that one interpretation of the statute was clearly at odds with statutory language, not as holding that the statutory language was generally clear.  But that view still leaves Justice Alito in the awkward position of arguing that the Clean Water Act clearly and unambiguously did not apply to Mr. Rapanos's alleged activity (filling wetlands) but was terminally ambiguous in its application to the Sacketts' alleged activity (filling wetlands).

All of this may not amount to much, because the Rapanos plurality clearly indicated that even if it found section 404 ambiguous, it still would have rejected EPA's interpretation.  But at the very least, it seems fair for Justice Alito to acknowledge, if he decides to lambaste Congress for drafting an ambiguous statute, that just a few years earlier he seemed to think that same statutory language was not ambiguous at all.

- Dave Owen

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