Justice Kennedy and Ecosystem Services: A Functional Approach to Clean Water Act Jurisdiction after Rapanos
32 Pages Posted: 19 Feb 2008 Last revised: 28 Oct 2013
Justice Kennedy's significant nexus test may emerge as the proverbial silver lining of the U.S. Supreme Court's June 2006 decision in Rapanos v. United States, at least so far as recognition of ecosystem services is concerned. The Court's opinion in Rapanos was fractured. Nevertheless, it left no doubts that the Clean Water Act's jurisdiction over navigable waters had been limited, drawing criticism for both its lack of clarity and its restriction of federal jurisdiction under the Act.
The extent of that restriction, however, would depend on which of the three major opinion's in the case - Justice Scalia's plurality, Justice Kennedy's concurrence, or Justice Stevens' dissent - the lower courts chose to follow. Since the Rapanos decision, it has become clear that Justice Kennedy's concurrence provides the controlling test or one of the controlling tests in every circuit where the Court of Appeals has addressed the issue. As such, Justice Kennedy's significant nexus test is likely to guide Clean Water Act jurisdiction for the foreseeable future, unless Congress decides to act instead.
By forcing lower courts to find and articulate a functional connection between the waters at issue and more traditionally navigable waters, Justice Kennedy's test encourages the federal courts to articulate the ecosystem functions that these waters serve and to identify the ecosystem services that they provide to humans. As a result, this Article argues, Justice Kennedy's significant nexus test may help to produce an ecosystem services rhetoric that will emphasize both the ecological and economic value of the nation's waters, potentially improving both the public's appreciation of water quality regulation and the overall quality of that regulation.
Keywords: Clean Water Act, Rapanos, navigable waters, waters of the United States, ecosystem services, ecosystem function, significant nexus, functional approach, categorical approach, formalistic approach, water quality
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