As scores of commentators and reporters attempt to spin yesterdays 4-1-4 decision in the Rapanos case, it is clear that the Adminsitration has before it a huge opportunity to address a long festering case of regulatory overreach. Justice Kennedy’s opinion is the narrowest of the rulings and so it controls, and Justice Kennedy seems to call for new regulations from the Army Corps of Engineers designed to stop the routine abuse of the Clean Water Act’s definitions. (The plurality doubts his sincerity, suggestiung in footnote 15 that “Justice Kennedy tips a wink at the agency, inviting it to try its same expansive reading again.”)
Whether or not Justice Kennedy is sincere in his admonition to the Corps, the Corps is a part of DoD, and the DoD part of the Executive Branch, and the plurality opinion as well as Justice Kennedy’s concurrence and Chief Justice Roberts’ concurrence can fairly be read as a strong prompt to action, one which the president and Secretary Rumsfeld should follow up on with urgency.
The president and the SecDef should demand new regs on what “substantial nexus” means, and get a definition of “navigable waters” out that reflects the commonly understood meaning of such words. In other words, take the opening provided by the SCOTUS to strip bureaucrats of the endless delays that result in zero reform of its regulatory zeal. The new regs can be published as emergency regulations in response to the Court’s direction, while also allowing for a notice-and-comment period to follow. Even if challenged by environmental groups, the effect from publishing clear guidance will be to provide farmers and landowners with a definitive interpretation to use in their endless regulatory battles with ACOE staff indifferent to the SCOTUS opinions.
Not only would new regulatory definitions have the effect of complying with a clear directive from the Supreme Court, quick publication would be good politics as well, coming as it does after another Congress has failed to enact any meaningful reform of any of the environmental laws that are routinely abused by regulators and environmental activists. The war and the obstructionist tactics of Lincoln Chafee and his Democratic allies in the Senate have blocked any redress of the environmental agencies’ disregard of law and common sense, but now the Administration can act on the clear direction provided by a majority of the Supreme Court.