In the Wetlands Case, the Supreme Court Divides Over the Clean Water Act--and Seemingly Over How to Read Statutes as Well

By MICHAEL C. DORF
Wednesday, Jun. 21, 2006

Earlier this week, a divided Supreme Court decided Rapanos v. United States. The technical question at issue was how to construe the term "navigable waters" as used in the federal Clean Water Act. The Court as a whole gave no answer to that question, because no single opinion commanded the votes of a majority of the Justices. Consequently, the lower courts will now have to muddle through as best they can, until a future case yields greater clarity.

Because the implications of Rapanos for environmental law are thus unclear, I will focus here on what the case tells us about jurisprudential philosophy. During the last two decades, even as constitutional decisions on such hot-button issues as abortion, affirmative action, and gay rights have been at the center of national debate about the Court, in less high-profile cases, the Justices themselves have been fighting no less intensely over how to read statutes enacted by Congress. Or, at least, so it would appear to the casual reader of their occasionally pointed barbs.

Roughly speaking, there are two camps. The purposivists believe that when a statute is ambiguous, courts should construe its language so as to best accomplish the statute's underlying purposes. By contrast, the textualists frequently deny that a statute has any coherent underlying purpose; a statute typically embodies nothing more than some messy legislative compromise, the say. Accordingly, textualists are less likely to find ambiguity than are purposivists, and when they do find it, they are more likely to rely upon dictionaries and linguistic analysis, than upon policy analysis, to resolve the ambiguity.

Rapanos was a showdown between purposivism and textualism. Chief Justice Roberts, as well as Justices Alito and Thomas, joined a strongly textualist opinion by Justice Scalia. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, wrote a strongly purposivist dissent. And Justice Kennedy, splitting the difference, wrote a mildly purposivist separate opinion that ended up controlling the outcome in the case.

Thus, in matters of jurisprudence, as in other matters, Justice Kennedy appeared to solidify his new role as the swing vote on the post-O'Connor Court.

But appearances can be deceptive, for as I shall explain, the labels "textualist" and "purposivist" exaggerate differences among Justices who largely share a commitment to what might be called "holistic" statutory interpretation. In the end, their differences--which are real--tend to be more ideological than jurisprudential.

The Issue in Rapanos: Which Wetlands Does the Clean Water Act Cover?

The Clean Water Act forbids the discharge of pollutants, broadly defined, into "navigable waters." Although that term ordinarily connotes bodies such as oceans, lakes and rivers suitable for boat traffic, the Act also makes clear that it is a term of art, by further defining navigable waters as "the waters of the United States." As the Clean Water Act expressly indicates, even wetlands--such as bogs, swamps and marshes--can count as the waters of the United States.

A regulation of the Army Corps of Engineers asserted broad authority over wetlands, but the Rapanos petitioners contested the matter. The question in the case was which wetlands are covered. The Justices divided into three camps.

The Textualist Approach of the Plurality

Justice Scalia's plurality opinion set forth the narrowest view. In order to qualify as "waters of the United States," Justice Scalia said, wetlands must have a physical connection to a "relatively permanent, standing or flowing" body of water.

Thus, in this view, a wetland directly bordering a ditch that is dry most of the year is not within the jurisdiction of the Army Corps of Engineers--even if, after periods of heavy rainfall, pollutants deposited in the wetlands find their way into the ditch, and from there into larger bodies such as streams, rivers and lakes.

Likewise, under the plurality view, a wetland that is separated by dry land from a river does not count as part of the "waters of the United States," even if the wetland has a biological or geological connection with the stream. (For example, the wetland may absorb heavy rains that would otherwise overrun the river's banks, or may serve as habitat for aquatic birds that also utilize the river.) Nonetheless, under Justice Scalia's restrictive definition, the wetland is outside the jurisdiction of the Army Corps.

The plurality thought these two conditions--relative permanence and physical connection--were necessary to give effect to the language of the statute.

With respect to relative permanence, Justice Scalia mockingly characterized the broader view of the Army Corps as a "'Land is Waters' approach to federal jurisdiction."

And as to physical connection, Justice Scalia contended that the reason wetlands were covered by the Clean Water Act in the first place was that the boundary between bodies of water and wetlands was sometimes hard to discern, so that wetlands could count as within the general aquatic environment. But absent such a physical connection, he said, the wetlands were simply that, wet lands, not waters.

The Dissent and Justice Kennedy's Separate Opinion

A majority of the Court rejected both of Justice Scalia's two conditions for wetlands to qualify as "waters of the United States." The four dissenters would have simply upheld the regulations of the Army Corps of Engineers. Those regulations governed wetlands if they were broadly connected to the waters of the United States, which in turn were broadly defined. Justice Kennedy largely agreed with the dissenters, but required that where wetlands are not adjacent to navigable-in-fact waters, "the Corps must establish a significant nexus" to such waters "on a case-by-case basis."

As Chief Justice Roberts acknowledged in a concurring opinion, because no opinion commanded five votes, Justice Kennedy's view--which states the narrowest basis for the holding--will control in the lower courts. And under that view, the Corps will have to provide more evidence in court for its regulation of certain wetlands than it has in the past, but its overall authority will remain nearly as broad as it has been under the current regulations.

Thus, although Justice Scalia nominally announced the Court's judgment, the real law in Rapanos was made by Justice Kennedy, who sided with the nominal dissenters on the questions of relative permanence and physical connection--taking the view that neither was required for the Corps to regulate.

Construing the Clean Water Act in Light of its Purposes

Why did Justice Kennedy and the dissenters reject these two conditions? Simply put, because, whatever their merits as a matter of linguistic exegesis, the conditions made little sense in relation to the purposes of the Clean Water Act.

As a limitation on federal jurisdiction, Justice Kennedy said that relative permanence "makes little practical sense in a statute concerned with downstream water quality. The merest trickle, if continuous, would count as a 'water' subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not."

Justice Kennedy reasoned similarly with respect to physical connection. The relevant connection, Justice Kennedy and the dissenters said, is hydrological. Direct adjacency to a body of water will typically yield a hydrological connection, but often a hydrological connection will exist without such adjacency. Depending on the acreage at issue, paving over a marsh that is miles away from a lake can have a much larger impact on the water quality in the lake, than would depositing minerals in a swamp directly adjacent to the lake.

What's Wrong with Looking at Legislative Purpose?

In construing ambiguous statutory language, shouldn't a court take into account the purpose of the statute? What possible objection could Justice Scalia and the other Justices in the plurality have to that?

For starters, according to Justice Scalia, the statutory language was not ambiguous, or at least not sufficiently ambiguous to permit the "land is water" approach of the Army Corps. But that's not an especially compelling point, given that even Justice Scalia conceded that some kinds of land--that is, certain wetlands--are water under the Clean Water Act.

Accordingly, Justice Scalia also denigrated reliance on legislative purpose more broadly. As he noted, "no law pursues its purpose at all costs, and . . . the textual limitations upon a law's scope are no less a part of its 'purpose' than its substantive authorizations." In Rapanos, Justice Scalia observed, in addition to promoting clean water, the Clean Water Act had the further purpose of preserving a vital role for the states in regulating land use. Thus, real limits had to be placed on the jurisdiction of the Army Corps.

The general point is certainly a fair one. Many federal statutes serve the purpose of safety--safe workplaces, safe automobiles, safe toys, and so forth. But none of these statutes aims at perfect safety, and so it would be inappropriate for a court to read, say, the Consumer Product Safety Act, to prohibit the sale of all bicycles on the theory that people can get injured riding bicycles and the Act promotes safety. The Act, by its terms, only authorizes the Consumer Product Safety Commission to address "unreasonable risks of injury associated with consumer products."

The Purposivism Scalia Targeted is a Straw Man

Accordingly, if Justice Kennedy or the Rapanos dissenters had concocted their own regulatory requirements on the basis of the Clean Water Act's general promotion of clean water, they would have committed the very purposivist error that Justice Scalia attributed to them.

But that is not, in fact, what Kennedy and the Rapanos dissenters did. Instead, they used the purpose of the Clean Water Act to provide context for understanding (what they regarded as) ambiguous language. Faced with competing definitions of "waters," they made their respective choices based on the science of water pollution, rather than just relying on abstract dictionary definitions.

Indeed, Justice Scalia himself has frequently championed just this sort of contextualism. He has pointedly and correctly objected to "strict constructionism," stressing that the point of statutory interpretation is to construe the language reasonably, not strictly.

Beyond the Textualism-Versus-Purposivism Debate

Another case the Supreme Court decided this month, Zedner v. United States, nicely illustrates the ubiquity of purposivism. There, in an opinion authored by Justice Alito, the Court unanimously held that a defendant in a criminal case cannot prospectively waive the protections of the Speedy Trial Act--the federal statute that establishes specific time limits within which each of the stages of a federal criminal prosecution must occur.

Although nothing in the language of the Act specifically ruled out such a waiver, Justice Alito noted that various provisions of the Speedy Trial Act would serve no purpose if such a waiver were allowed. And although Justice Scalia went out of his way to disavow another paragraph of Justice Alito's opinion in Zedner, he joined in the paragraph that began: "The purposes of the Act also cut against exclusion [of time from the pre-trial period] on the grounds of mere consent or waiver."

So it would seem that all the Justices are purposivists. Or perhaps more accurately, in construing statutes, all judges routinely take into account both the text of the statute and its purposes, to the extent that the latter can reasonably be identified and employed to make sense of ambiguous language. The differences between the Justices are, at most, matters of emphasis and degree.

And that in turn suggests that terms like "textualism" and "purposivism" can sometimes obscure more substantive disagreements. In Rapanos, despite the jurisprudential thrusts and parries, the Justices really were fighting about the proper scope of federal environmental regulation.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

Ads by FindLaw