Anthony Kennedy on Environment
Supreme Court Justice (nominated by Pres. Reagan 1988)
"Navigable waters" includes "significant nexus" to water
The Army Corps of Engineers defines wetlands as "adjacent to waters (other than waters that are themselves wetlands)". Yet even according to that broad, ambiguous definition, the defendant in the Rapanos case was not in violation of the Clean Water Act.
The closest stream was over 20 miles away.
Justice Kennedy defined "navigable waters" as applying to any land or water that has a "significant nexus" to navigable waters, and the plot of land or water must be significant enough "to perform important
functions for an aquatic system incorporating navigable waters." Kennedy's definition did not go on to explain the process of the "significant nexus" test, this placing more ambiguity and broad power in the hands of the government.
Although property rights supporters saw this Court ruling in a positive light, there is no question that the Rapanos decision left our clean water laws a little murkier than they were before.
Source: Government Bullies, by Rand Paul, p. 62-63
, Sep 12, 2012
EPA, not Congress, determines when cost-benefit applies
Riverkeeper v. EPA, 2007, challenged an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life, the Clean Water Act requires the intake structures to use the "best technology available," withou
specifying that technology. Sotomayor held that the EPA was not permitted to engage in a cost-benefit analysis to determine the best technology; instead, it could consider cost only to determine whether the proposed technology was "cost-effective."
In April 2009, by a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed that the CWA's silence with regard to determining the best technology available "is meant to convey nothing more than a refusal to tie the agency's
hands as to whether cost-benefit analysis should be used, and if so to what degree." Justice Stevens wrote a dissenting opinion, that "Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others."
Source: ScotusBlog.com, "Civil Litigation"
, Jul 25, 2009
Migratory birds don't extend CWA to isolated waters.
Justice Kennedy joined the Court's decision on SWANCC v. Army Corps of Engineers on Jan 9, 2001:
Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers interpreted a provision of the Clean Water Act (CWA) which requires permits for the discharge of dredged or fill materials into "navigable waters." This provision was the basis for the federal wetlands permitting program.
HELD: By Rehnquist, joined by O'Connor, Scalia, Kennedy, and ThomasJustices rule, 5–4, that law does not authorize federal government to regulate dredging and filling of isolated ponds and wetlands. The Court held that the Corps of Engineers' use of the long controversial "migratory bird rule," adopted by the EPA to interpret the reach of their authority over "isolated waters" (including isolated wetlands), exceeded the authority granted by that section. Long before the SWANCC case, there had been controversy and litigation over whether isolated waters that are not adjacent to true navigable waters are properly within EPA jurisdiction.
The "migratory bird rule" extends the CWA to intrastate waters that provide habitat for migratory birds, despite being isolated from navigable waters.
The decision may affect up to 79% of wetland acreage. States may act to fill in the gap left by removal of some federal jurisdiction through new laws or programs.
DISSENT: By Stevens, joined by Souter, Ginsburg, and BreyerThe dissent stated that the CWA went beyond navigable waters, to embrace marshes and adjacent inland lakes would extend the CWA indefinitely. The 1972 CWA offered no support for such a constraint, and the 1977 CWA amendment supports coverage of isolated waters. Moreover, the dissent declares, there is no Commerce Clause problem, since the discharge of dredged and fill materials into "waters of the United States" constitutes an economic activity that may be aggregated to show a substantial effect on interstate commerce.
Source: Supreme Court case 01-SWANCC argued on Oct 31, 2000
Eminent domain applies to social & economic development.
Justice Kennedy wrote the concurrence on Kelo v. City of New London on Jun 23, 2005:
In one of the most controversial cases of the session, the Court rules, 5-4, in Kelo v. City of New London, that a government can take possession of private property against the owner's will and transfer it to private developers when the result will promote economic development.
HELD: Delivered by Stevens, joined by Kennedy, Souter, Ginsburg, BreyerThe Fifth Amendment allows the government to take private property for public use. The majority opinion says "public use" also means "public purpose." "Promoting economic development is a traditional and long accepted function of government," Stevens writes. "Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose."
CONCURRENCE: Concurrence by KennedyThe concurring opinion sets out a program of civil discovery in the context of a challenge to an assertion of government purpose.
However, Kennedy does not explicitly limit these criteria to eminent domain, suggesting that they may be generalized to all health and welfare regulation.
DISSENT: Dissent by O'Connor, joined by Rehnquist, Scalia, ThomasThe dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion--take from the poor, give to the rich-- would become the norm, not the exception: "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property--and thereby [expands] the Takings Clause of the Fifth Amendment."
Source: Supreme Court case 05-KELO argued on Feb 22, 2005
Clean Water Act applies only to navigable wetlands.
Justice Kennedy wrote the concurrence on RAPANOS v. UNITED STATES on Jun 19, 2006:
One petitioner was the subject of a civil enforcement action by the Army Corps of Engineers for filling, without a permit, three wetland sites that the Corps considered to be "navigable waters" under the Clean Water Act (CWA). These wetlands had "surface connections" to traditionally navigable waters. Another petitioner appealed the Corps' denial of a permit to fill wetlands that were separated by a dike from a drainage ditch that emptied into a tributary of traditionally navigable waters.
HELD: Delivered by Scalia; joined by Thomas & AlitoThe CWA defines "navigable waters" as actual water, as found on the earth's surface in a permanent standing or flowing state. It does not include wetlands, except those wetlands that abut and extend without interruption away from "navigable" water. Here the technical expertise of the Corps in determining an appropriate boundary is called for. While entitled to deference, the Corps' regulations and policies cannot stand when they are
entirely without statutory support, and the Corps now asserts jurisdiction over roadside ditches and desert arroyos that are dry other than a few days a year.
CONCURRED: Kennedy concursThe Court's precedent requires that a water or wetland have a "significant nexus" to traditionally navigable water. The Court should have followed that precedent.
CONCURRED: Roberts concursIt is unfortunate that a majority could not agree on an opinion, because the Corps and lower courts will be left without guidance.
DISSENT: Stevens dissents; joined by Souter, Ginsburg, & BreyerThe Court's precedent was that, considering the environmental goals of the CWA, the Corps' interpretation of its jurisdiction was reasonable to include tributaries and wetlands that the Corps considered to be "adjacent" in the sense of within a reasonable proximity and connected in some manner, not directly abutting, "navigable waters."
Source: Supreme Court case 06-RAPANOS argued on Feb 21, 2006
States can request that EPA regulate CO2 greenhouse gases.
Justice Kennedy joined the Court's decision on MASSACHUSETTS v. EPA on Apr 2, 2007:
Numerous entities, including the Commonwealth of Massachusetts, asked the EPA to judge that carbon dioxide (CO2) was a pollutant causing global warming and, acting under the Clean Air Act (CAA), to make rules restricting its release by newly manufactured automobiles. The EPA declined to do so.
HELD: Delivered by Stevens; joined by Kennedy, Souter, Ginsburg & BreyerThe plaintiffs have standing for a federal case. Massachusetts, in particular could make a showing of injury (rising coastal water levels), causation (an incremental lowering of CO2 would be helpful), and remedy (the EPA could effect an incremental lowering). The EPA believed that Congress did not intend the EPA to regulate substances that cause climate change. The EPA, however, should find CO2 (among other gases) falls within the definition of a pollutant because it is a "substance" that is "emitted into the ambient air."
DISSENT #1: Roberts dissents; joined by Scalia,
Thomas & AlitoThe plaintiffs do not have standing because they can show no concrete injury, the evidence of causation by greenhouse gases of rising coastal water in Massachusetts was minimal (and undercut by its own expert's affidavit), and there was no showing that a rule issued by the EPA could provide measurable relief to the plaintiffs. The plaintiffs' claim cannot truly be resolved by decision of a federal court.
DISSENT #2: Scalia dissents; joined by Roberts, Thomas, & AlitoIt was a reasonable interpretation by the EPA of the CAA that Congress intended the EPA to regulate air pollution in the "ambient air," that is, air at or near the surface of the earth, not the upper reaches of the atmosphere where greenhouse gases are said to have their detrimental effects. Further, nothing in the CAA, not even a petition for regulations, requires the EPA to make a "judgment" that a pollutant should be regulated, and the Court is not free to order the EPA to do so.
Source: Supreme Court case 07-MA-EPA argued on Nov 29, 2006
OK to sue polluters for past pollution.
Justice Kennedy joined the Court's decision on FRIENDS OF THE EARTH v. LAIDLAW on Jan 12, 2000:
Laidlaw Environmental Services bought a wastewater treatment plant and was granted a Pollutant Discharge Permit by the South Carolina Department of Health and Environmental Control (DHEC). Laidlaw began to discharge various pollutants into the waterway, repeatedly in excess of the limits set by the permit. In April 1992, Friends of the Earth (FOE) sued; the DHEC and Laidlaw reached a settlement requiring Laidlaw to pay $100,000 in civil penalties and to make “every effort” to comply with its permit obligations.
In June 1992, FOE filed this citizen suit against Laidlaw, alleging noncompliance with the permit and seeking further penalties. A judge found in 1997 that Laidlaw had gained a total economic benefit of $1,092,581 as a result of 13 permit violations between 1992 and 1997; and awarded a civil penalty of $405,800. Laidlaw [appealed on the grounds that] the entire facility has since been permanently closed, and all discharges from the facility have permanently ceased,
[and the Fourth Circuit dismissed the case as moot].
Held:(Ginsburg, joined by Rehnquist, Stevens, O’Connor, Kennedy, Souter, and Breyer(
The Fourth Circuit erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant has come into compliance with its Pollution Discharge permit.
Dissent:(Scalia, joined by Thomas)
The Supreme Court uncritically accepting vague claims of injury [where] the District Court found that Laidlaw’s discharges caused no demonstrable harm to the environment. It then proceeds to marry private wrong with public remedy in a union that violates traditional principles of federal standing--thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this.
Source: Supreme Court case 98-822 argued on Oct 12, 1999
Limit CWA restrictions to navigable waterways.
Justice Kennedy joined the Court's decision on SOLID WASTE AGENCY OF COOK COUNTY v. ARMY CORPS OF ENGINEERS on Jan 9, 2001:
A consortium of suburban Chicago municipalities (Cook County) selected as a solid waste disposal site an abandoned sand and gravel pit. They asked the Army Corps of Engineers (Corps) to determine if a landfill permit was required under the Clean Water Act (CWA). The Corps cited the “Migratory Bird Rule,” which extended its jurisdiction to intrastate waters that provide habitat for migratory birds, and refused to issue a permit.
Held: (Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying the Migratory Bird Rule exceeds the authority granted to the Corps under the CWA. The Corps would have jurisdiction over wetlands adjacent to a navigable waterway, but these wetlands are not adjacent to open water.
Dissent:(Stevens, joined by Souter, Ginsburg, & Breyer)
In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste,
caught fire. Congress responded to that dramatic event by enacting the Clean Water Act. The Act proclaimed the ambitious goal of ending water pollution by 1985. The Court’s past interpretations of the CWA have been fully consistent with that goal. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.
In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.
Congress does support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. I respectfully dissent.
Source: Supreme Court case 99-1178 argued on Oct 31, 2000
Page last updated: Jun 08, 2017