Wednesday, March 30, 2016

A Few Reactions to the Hawkes Oral Argument

The United States Supreme Court heard oral argument this morning in U.S. Army Corps of Engineers v. Hawkes, a case considering whether "jurisdictional determinations" under the Clean Water Act are subject to judicial review.  Below are a few reactions to the questions and answers at oral argument (all based on reading the transcript; I was not there).

  • This shouldn't be as ideologically fraught as some of the Court's other recent environmental cases.  The basic dilemma raised by this case is that informal government communications can be really helpful to regulated entities, but it can also seem frustrating and unfair when a regulated entity finds itself bound, as a practical if not legal matter, by those informal communications and can't challenge them in court.  Ruling against the government could chill a form of communication that most regulated entities find helpful; ruling against for the government could delay the ability of non-governmental entities of all types--liberal advocacy groups as well as conservative groups and businesses--to challenge legal positions they find objectionable.  That does not, on its face, sound like an overtly ideological dilemma, and, perhaps not surprisingly, some of the justices were clearly troubled by both sides' arguments.  But the more conservative justices appear, from their questions, to be skeptical of the notion that informal communication might be a valuable service offered by agencies, and to have adopted the more cynical view that it's really just about extending the agency's power and reach.  Once they've made that move, the case does start to look a whole lot more ideologically charged. 
  • So is the Clean Water Act "unconstitutionally vague" but not at all ambiguous?  At one point, Justice Kennedy suggested that the Clean Water Act's jurisdictional provisions might be unconstitutionally vague.  Yet fifteen years ago, in SWANCC v. United States, Justice Kennedy signed on to an opinion that expressly declined to accord Chevron deference to the Army Corps's and EPA's interepretation of that same jurisdictional provision.  The Court normally gives Chevron deference to reasonable agency interpretations of ambiguous statutory provisions, but the SWANCC majority instead concluded that the statute's meaning was sufficiently clear that no such deference was required.  Five years later, in Rapanos v. United States, Justice Kennedy authored a concurring opinion interpreting those same provisions; his concurrence again declined to accord Chevron deference.  Perhaps this is just a reminder that no one should make too much of stray asides at oral argument, but the suggestion that the statutory language--which hasn't changed--is now unconstitutionally vague seems drastically at odds with Justice Kennedy's prior positions.
  • The 404 permitting process is faster, usually, than the justices realize.  In one question, Justice Ginsburg described the dilemma of a landowner who receives an unfavorable (from the landowner's perspective) jurisdictional determination: "now they have to go through this whole process, and it's going to take years and cost me a lot of money."  But it probably won't take years.  Below, I've pasted a chart from a recent Army Corps/EPA report on 404 permitting.  As you can see, typical permitting times are much shorter than Justice Ginsburg suggested.  And while the data don't answer this question, I suspect permitting times are likely to be particularly short for the kinds of borderline situations in which landowners request jurisdictional determinations.  Generally speaking, bigger impacts to aquatic resources require longer permitting times, and landowners whose impacts will be big usually have no need of jurisdictional determinations.

Army corps chart

This may not matter for the legal issue in the case.  An obligation to go through a six-month permitting process, or even a two-month process, is still an obligation.  But I'm concerned to see more of the justices implicitly buying into elements of a false narrative about the oppressiveness of the 404 program.  

And that mythmaking was in further evidence later in the argument.  At one point, Justice Alito made the following assertion about the consequences of a jurisdictional determination: "And if they issue a negative,­­ I'm sorry,­­ an affirmative jurisdictional determination, as a practical matter, that's going to mean in most instances that the project is shut down."  That statement is inaccurate.  In reality, an affirmative jurisdictional determination means the landowner may have to adjust the project design and may need to compensate for the resulting impacts to aquatic resources.  But it does not mean the project will be shut down.

  • As an administrative law professor, I love this question from Justice Kagan.  She gets it. 

I mean, one of the reasons I find this case very difficult is because all over the Federal government there are compliance offices of various kinds whose function is to give advice to people. And often that advice comes with very specific recommendations. It says we will not take enforcement action if, or, we do not consider it a violation of law  on the following facts. And I guess what I want to know is your view of how this program compares to various other kinds of programs like this, whether it's the ­­ whether it's tax opinion letters, or SEC opinion letters, or FCC or whatever, how this program compares to those and where you could draw sensible lines, because mostly we want  government agencies to do these things. We think that this helps people, to actually know what the government thinks about particular factual situations. So how do we draw lines in this area, in your view?

Dave Owen

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