Running Down the Controlling Opinion in Rapanos v United States

Abstract

In Rapanos v United States, a majority on the Supreme Court held the federal government could not regulate all “waters of the United States” under the Clean Water Act based on a mere hydrological connection to a traditional navigable waterway. But the Court split 4-1-4 as to the jurisdictional test for covered waters. The four-member Scalia plurality would authorize federal regulation of only those wetlands physically abutting and indistinguishable from natural rivers, lakes, and streams connected to a traditional navigable waterway. Justice Kennedy concurred in the judgment but proffered a different test that would allow federal regulation of any wetland with a “significant nexus” to a traditional navigable water, even in the absence of a direct hydrological connection. The four Justices in the dissent would authorize federal regulation of all waters that would serve to protect the nation’s waters generally. Therefore, the lower courts must decide the controlling opinion. The only standard provided by the Supreme Court to interpret its split decisions is set forth in Marks v. United States. Under Marks, the controlling opinion is that position “taken by those Members who concurred in the judgments on the narrowest grounds.” The term “narrowest grounds” means that opinion which is a logical subset of the other concurring opinion(s) in the case. The circuit courts are divided on how to apply Marks to the Rapanos decision. Some have adopted the lone Kennedy concurrence or rejected Marks as unworkable allowing the government to establish federal jurisdiction under either the Kennedy concurrence or the Scalia plurality. In each case, the court either misconstrued Marks or misinterpreted Rapanos. This article makes the case that whenever the Scalia plurality would find a jurisdictional water, Justice Kennedy would agree because the plurality test is a logical subset of Justice Kennedy’s broader “significant nexus” test. Together, the four Justices in the plurality and Justice Kennedy constitute a five-member majority. Under a proper application of Marks, the Scalia plurality is the controlling opinion in the Rapanos decision.

Keywords: Clean Water Act, Rapanos, Scalia, WOTUS, waters of the United States