Topic: Energy and Environment

Rapanos, Raich, and Agency Discretion

One interesting question lurking in the background of some recent Supreme Court cases is the scope of discretion executive agencies receive when they assert very broad power over areas that are traditionally committed to state authority. Traditionally, under the Court’s landmark 1984 decision in Chevron v. Natural Resources Defense Council, courts are supposed to defer to an agency’s “reasonable” interpretation of its authority when the statute does not clearly speak to the question at issue. The question is, what happens when an ambiguous statute buts up against the outer boundaries of federal constitutional power?

After Gonzales v. Raich, the question was all the more pressing. Raich held that Commerce Clause concerns are at a low ebb when Congress regulates an interstate market “comprehensively.” In that context, when Congress finds that regulating local conduct is essential to the larger regulatory scheme, the majority in Raich said it will defer to Congress’s judgment. As Cato’s amicus brief in Rapanos argued:

If, after Raich, agencies can use legislative history, statutory purpose, or context to manufacture ambiguity nowhere apparent from the text of a statute, and if, in turn, agencies interpreting their power under “ambiguous” statutes are granted both the full quantum of deference owed to Congress under Raich and under Chevron, the potential for agency aggrandizement is immense, indeed.

In light of these and other concerns, we argued, Congress (at a bare minimum) must clearly state in the text of the statute that it intends to push the envelope of federal power before agencies can assume the power and discretion to step into an area traditionally regulated by states.

Scalia appears to take these concerns seriously. First, he notes: “Even if the phrase ‘the waters of the United States’ were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps’ interpretation of the statute is impermissible.” In other words, the Court’s constitutional concerns trump agency discretion under an ambiguous statutes–even one that constitutes comprehensive regulation under Raich. This is an important qualification of the traditional Chevron test, one that reigns in the worst excesses of Raich.

Second, in footnote 9, Scalia underscores that before an agency can reach local conduct under a comprehensive regulatory program, Congress must clearly authorize it to do so in the statutory text. Only then will the Court consider whether the agency’s authority is consistent with the Constitution’s division of power between the federal government and states.

The troubling thing about Roberts’ concurrence is that, on one reading, he would appear to take a far more expansive view of agency discretion. He says:

Agencies delegated rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.

The proposed rulemaking went nowhere. Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.

Its far from 100% clear what kind of test Roberts envisions here. But the best reading is this: If the agency deliberates about its constitutional and statutory authority in a “limiting way” in the context of public notice and comment procedures, he would give the agency “generous” deference, even the EPA would draw lines different (and more expansive) than those that Scalia’s plurality opinion draws. In effect, Roberts would give an agency treading close to the constitutional boundary the same deference that the Court grants to Congress under Raich if the agency draws any limits, no matter how slight, on its authority–precisely the interpretive method we raise red flags about in our brief.

Supreme Court Trims Reach of the Clean Water Act, For Now

As noted, the Supreme Court decided the much anticipated consolidated Commerce Clause-flavored challenges to the Clean Water Act, Rapanos v. United States and Carabell v. United States, trimming back the scope of federal wetlands regulation. (Cato filed an amicus brief in support of the petitioners in Rapanos, which you can access here.) The decision is a mixture of equal parts good news and not-quite-so-good news.

The good news is Justice Scalia’s opinion for the court, joined by three other justices: the Chief, Justice Thomas, and Justice Alito. The not-quite-so-good news is the concurrence, written by Justice Kennedy–the all important fifth vote–which significantly qualifies Justice Scalia’s plurality decision, and the concurrence written by Chief Justice Roberts.

First, a bit of background.

 The Clean Water Act, among other things, regulates point source pollution (pollution discharged through a drain of some sort). The Act says regulators can impose criminal sanctions for any pollution into “navigable waters,” defined as “waters of the United States.” But one bit of the Act, imposing reporting requirements and such on state dredging programs, refers to federal waters “adjacent to” navigable water. Federal environmental regulators suggest, based on this apperance of the word “adjacent,” that the Act covers some non-navigable waters.

Indeed, federal regulators go much, much further than that. They argue that any land with a “hydrological connection” to navigable water is within federal regulatory authority. That means even a trickle of surface water or ground water that might eventually wend its way off a land-locked piece of property, trickling drops into a navigable body of water scores of miles away, or more, is within federal power. Hence, the prosecution of John Rapanos: A Michigan commercial developer, Mr. Rapanos dumped sand on one parcel of land in preparation for a real estate development. He was slapped with criminal charges–and threatened with jail time–because grains of that sand may be carried by rainwater through on old run-off drain and, after an epic journey through culverts, creeks and ditches, end up in the Kawkawlin River, twenty miles or so away.

Needless to say, this reading of the Clean Water Act stretches its text past the breaking point. Says Scalia’s opinion:

The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land-an authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board. We ordinarily expect a “clear and manifest” statement from Congress to authorize an unprecedented intrusion into traditional state authority. The phrase “the waters of the United States” hardly qualifies.

Likewise, the Corps’ interpretation stretches the outer limits of Congress’s commerce power and raises difficult questions about the ultimate scope of that power. Even if the term “the waters of the United States” were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Read by itself, the upshot of Scalia’s opinion is a significant victory for federalism. It rejects environmental regulators’ “hydrological connection” test for federal jurisdiction over wetlands and, furthermore, requires that regulated wetlands have a continuous, standing surface connection to navigable water. It recognizes, moreover, that the Clean Water Act is at the periphery of federal commerce power.

Unfortunately, the Chief Justice’s and Justice Kennedy’s concurring opinions muddy the water (bad puns not intended).

First Kennedy. Kennedy says the Clean Water Act doesn’t raise difficult questions of federal commerce power. Instead, based on a simple interpretation of the Act’s text and legislative purpose, he contends only that regulators lack control over any water–surface or ground, continually running or intermittent–without a “significant nexus” to navigable water. What this means exactly we don’t know. Kennedy wants the lower courts to come up with a significant nexus text–one more bite at the apple, in other words.

Chief Justice Roberts, moreover, invites the EPA to engage in formal notice and comment rulemaking (that’s legalese for a regulatory proceeding that announces a new rule after public input) about the scope of federal power over wetlands and suggests that if it engages in such rulemaking, it would deserve great leeway in the lines it draws. This is a very significant qualification, as it suggests he would be less inclined to second-guess the agency in such a case, even if it draws lines around federal authority that are different than the Court’s preferred lines. Roberts’ concurrence deepens my suspicion that he is more committed to a broad theory of agency discretion than any other justice on the Court, including Scalia.

Wetlands Ruling

As Jerry notes, today’s ruling is welcome news.

Justice Scalia writes the main opinion and here are a few gems: “The U.S. Army Corps of Engineers exercises the discretion of an enlightened despot.” The Corps’ power to grant property owners a permit to do things on their own property relies upon “such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people.” Scalia notes “the average applicant for an individual permit spends 788 days and $271,596 in completing the process.”

Full Supreme Court ruling here. Cato brief in the case here. For more evidence of the despotism, go here or here.

It should be noted that the Bush administration was once again pushing a wildly expansive view of federal power in this case. Fortunately, it lost this one.

Supreme Court Deep-Sixes Federal Wetlands Regulation

From a news bulletin I just received from the enviro trade publication Greenwire:

Supreme Court limits reach of Clean Water Act in 5-4 ruling

A divided Supreme Court ruled this morning that Clean Water Act protection of “waters of the United States” is limited to “permanent, standing or continuously flowing” water. The ruling limits protection for wetlands separated from “navigable waters” or their tributaries.

Justice Anthony M. Kennedy cast the swing vote in the 5-4 ruling in the joint case, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.

This is a big win for the good guys!

More here.

Is Global Warming Melting Greenland’s Ice Sheet?

Al Gore’s cinematic lecture contends, in part, that rising global temperatures from industrial greenhouse gas emissions are at this very moment melting the Greenland Ice Sheet, a phenomenon that will eventually inundate global coastal areas and submerge countless cities. True? Not according to a new paper that appears in the June 13 issue of Geophysical Research Letters, a prominent peer-reviewed publication of the American Geophysical Union. The authors conclude their study with the following discussion:

We have analyzed temperature time series from available Greenland locations and we have found that:

i) The years 1995 to 2005 have been characterized by generally increasing temperatures at the Greenland coastal stations. The year 2003 was extremely warm on the southeastern coast of Greenland. The average annual temperature and the average summer temperature for 2003 at Ammassalik was a record high since 1895. The years 2004 and 2005 were closer to normal being well below temperatures reached in 1930s and 1940s (Figure 2).

Although the annual average temperatures and the average summer temperatures at Godthab Nuuk, representing the southwestern coast, were also increasing during the 1995-2005 period, they stayed generally below the values typical for the 1920-1940 period.

ii) The 1955 to 2005 averages of the summer temperatures and the temperatures of the warmest month at both Godthaab Nuuk and Ammassalik are significantly lower than the corresponding averages for the previous 50 years (1905-1955). The summers at both the southwestern and the southeastern coast of Greenland were significantly colder within the 1955-2005 period compared to the 1905-1955 years.

iii) Although the last decade of 1995-2005 was relatively warm, almost all decades within 1915 to 1965 were even warmer at both the southwestern (Godthab Nuuk) and the southeastern (Ammassalik) coasts of Greenland.

iv) The Greenland warming of the 1995-2005 period is similar to the warming of 1920-1930, although the rate of temperature increase was by about 50% higher during the 1920-1930 warming period.

v) There are significant differences between the global temperature and the Greenland temperature records within the 1881-2005 period. While all the decadal averages of the post-1955 global temperature are higher (warmer climate) than the pre-1955 average, almost all post-1955 temperature averages at Greenland stations are lower (colder climate) than the pre-1955 temperature average.

An important question is to what extent can the current (1995-2005) temperature increase in Greenland coastal regions be interpreted as evidence of man-induced global warming? Although there has been a considerable temperature increase during the last decade (1995 to 2005) a similar increase and at a faster rate occurred during the early part of the 20th century (1920 to 1930) when carbon dioxide or other greenhouse gases could not be a cause. The Greenland warming of 1920 to 1930 demonstrates that a high concentration of carbon dioxide and other greenhouse gases is not a necessary condition for period of warming to arise. The observed 1995-2005 temperature increase seems to be within a natural variability of Greenland climate. A general increase in solar activity [Scafetta and West, 2006] since 1990s can be a contributing factor as well as the sea surface temperature changes of tropical ocean [Hoerling et al., 2001].

The glacier acceleration observed during the 1996-2005 period [Rignot and Kanagaratnam, 2006] has probably occurred previously. There should have been the same or more extensive acceleration during the 1920-1930 warming as well as during the Medieval Warm period in Greenland [Dahl-Jensen et al., 1998; DeMenocal et al., 2000] when Greenland temperatures were generally higher than today. The total Greenland mass seems to be stable or slightly growing [Zwally et al., 2005].

To summarize, we find no direct evidence to support the claims that the Greenland ice sheet is melting due to increased temperature caused by increased atmospheric concentration of carbon dioxide. The rate of warming from 1995 to 2005 was in fact lower than the warming that occurred from 1920 to 1930. The temperature trend during the next ten years may be a decisive factor in a possible detection of an anthropogenic part of climate signal over area of the Greenland ice sheet.

So who are you going to believe—a couple of scientists from Los Alamos and an atmospheric physicist … or a politician who is, ahem, NOT a scientist and his similarly uncredentialed Hollywood friends? The latter group may turn out to be right, of course, but if you only paid attention to what was in the New York Times, you’d think studies such as the one above are the paid figments of oil company imagination. They are not.