THE SCOTUS EFFECT ON WOTUS
The recent loss of Supreme Court Justice Antonin Scalia marks the loss of a dedicated public servant and man who was widely considered to be one of the most respected legal minds, whose engaging perspective on the law made him extremely consequential in many matters. One lesser known, but far-reaching, issue that will be impacted by Justice Scalia’s absence is wetland regulation. The nature of Scalia’s replacement will have major implications on the highly controversial Waters of the U.S. rule, otherwise known as WOTUS. WOTUS defines which waters (rivers, lakes, streams, marshes, and more) fall under the jurisdiction of the Environmental Protection Agency (EPA) and Army Corps of Engineers. Many state and agriculture leaders feel that WOTUS is simply a power grab by the federal government to control more land. Members of Congress have come out in strong opposition to the EPA’s handling of this rule. In fact, EPA Administrator Gina McCarthy recently experienced severe criticism from members of the House Agriculture Committee, who blasted her for the agency’s actions which the Committee claimed have caused hardships for farmers in their states. From the Des Moines Register:
“Despite assurances they are protected, farm and livestock groups fear that the rule overreaches by expanding the scope of "navigable waters" protected by the act — potentially subjecting ditches, stream beds and self-made ponds on their property to new oversight that would require costly environmental assessments and permits.”
These fears have gradually increased over the years. In fact, the Supreme Court has ruled on many cases this century involving wetlands challenges. According to Politico, Justice Scalia often wrote the majority opinion on these rulings. Perhaps the most prominent of these cases was Rapanos v. United States, in which it was determined that the Army Corps of Engineers was too overreaching in its authority over waters. This case was thought to have defined what navigable waters meant, that is until the current administration’s attempts to re-define and expand on that rule. Undoubtedly, the WOTUS expansions will make their way to the Supreme Court. By the time that occurs, we could potentially have a new Supreme Court Justice in place. Devoid of Scalia’s presence on the Court, it will be interesting to see what the new Justice’s take and influence will be on this issue. Will it be a liberal-leaning Justice who falls in line with the Obama administration’s often-extreme advances on environmental legislation? Someone who sides with Gina McCarthy and the EPA on expansive regulation of farmland? That remains to be seen, but the feeling among many is that the balance of how the Court views water rules has been shifted. The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay in 2015 against the enforcement of the Clean Water Act for which WOTUS applies. With the Supreme Court being almost evenly divided on the controversy, a 4-4 decision would uphold this lower court’s ruling. But, if the Court were to add a liberal Justice before this ruling is made, a 5-4 decision would have significant impact on WOTUS moving forward and grant the federal government even more control over the day-to-day lives of America’s family farms and ranches.