BREAKING DOWN RAPANOS

 

 

ASSERTION:

JUSTICES WHO AGREE

JUSTICES WHO DISAGREE

Clean Water Act “navigable waters” are broader in scope than traditional “navigable waters”

 

9

 

0

Rapanos and Carabell must be remanded for “proper” evaluation of whether the wetlands at issue are “waters of the United States

 

5

(Scalia plurality +

Kennedy concurrence)

 

4

(Stevens dissent)

“Waters of the United States” are permanent geographical features – oceans, lakes, rivers, etc.

 

4

(Scalia plurality)

 

5

(Kennedy concurrence +

Stevens dissent)

“Waters of the United States” include any waters that have a “significant nexus” with – i.e., ability to affect  the chemical, physical, and biological integrity of – traditional navigable waters.

 

 

1

(Kennedy concurrence)

 

8

(everyone else – although Stevens dissent “largely agrees”)

“Waters of the United States” extend to the limits of the Commerce Clause

 

1

(Breyer dissent)

8

(everyone else, and foreclosed by Solid Waste Agency)

“Adjacent wetlands” need a direct surface water connection

 

4

(Scalia plurality)

5

(Kennedy concurrence +

Stevens dissent)

“Adjacent wetlands” need a “significant nexus”

 

1

(Kennedy concurrence)

8

(everyone else, although Stevens dissent is close)

“Adjacent wetlands” can be adjacent EITHER to traditionally navigable waters or to their tributaries, per the Army Corps’ regulations upheld in Riverside Bayview

 

 

4

(Stevens dissent)

 

 

5

(Scalia plurality +

Kennedy concurrence)

Commerce Clause is relevant to Clean Water Act jurisdiction

 

9

 

0

Commerce Clause is implicated in Rapanos and Carabell

 

4

(Scalia plurality)

5

(Kennedy concurrence +

Stevens dissent)

Federalism is relevant to Clean Water Act jurisdiction

 

9

 

0

Principles of federalism are violated in Rapanos and Carabell

 

4

(Scalia plurality)

5

(Kennedy concurrence +

Stevens dissent)

 

 

The Corps should be accorded Chevron deference

 

 

4

(Stevens dissent)

5

(Scalia plurality +

Kennedy concurrence –

but apparently all on Step 1 grounds, not, as in Solid Waste Agency, because the Corps is pushing constitutional limits)

 

The EPA and the Army Corps can write new regulations that “adjust” the definition of “waters of the United States” or “adjacent wetland”.

 

1 (?)

(Kennedy’s concurrence seems to indicate that new regulations are possible)

8 (?)

(Scalia plurality says its interpretation is the “only plausible interpretation,” which the Stevens dissent reads as foreclosing a new agency interpretation)