Friday, August 18, 2006

What did Rapanos "hold"?

  I vaguely remember a controversy back in the '90s about the reporting of the famous Lucas decision, which set forth a limited ground for property owners to recover from the government for a regulatory taking.  Today there's another problem with the reporting of a complex land use decision.  Perhaps the biggest victory for landowners against government regulation since Lucas is Rapanos v. United States, decided by the Supreme Court in June.  What did Rapanos "hold"?  For anyone who has read the case, the answer is clear:  There was no majority opinion in Rapanos; Justice Scalia's four-justice plurality opinion was not the opinion of the court.  But according to Westlaw (accessed this morning), "Justice Scalia ... announced the judgment of the court, holding that: (1) term 'navigable waters,' under CWA, includes only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water, and (2) only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA."  But Justice Kennedy, who concurred only in the judgment remanding the case, disagreed with this reasoning of the plurality.  Isn't this reporting as to the "holding" incorrect?

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