As many predicted, Justice Samuel Alito’s replacement of Justice Sandra Day O’Connor has moved Justice Anthony Kennedy to the ideological center chair on the Court, and the Justice’s opinion concurring only in the judgment in Rapanos and Carabell today proves the significance of the “swing-vote” power he now wields.
The two cases involve expansive claims by the U.S. Army Corps of Engineers under the federal Clean Water Act to control local land use decisions many miles from navigable waters of the United States. Justice Kennedy joined with the outcome reached by Justice Scalia (writing for a plurality of Chief Justice Roberts and Justices Thomas and Alito) remanding for further consideration, but notably absent from Justice Kennedy’s opinion is any recognition that the limits of the Clean Water Act are defined not by a significant pollution nexus, as Kennedy prefers, but by the Constitution itself, which extends power to the federal government in order to regulate commerce among the states.
Chief Justice Rehnquist well understood the importance of interpreting environmental statutes against the constitutionally-authorized purpose, when in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, he devoted an entire section of the opinion to the Commerce Clause analysis. Justice Kennedy joined that opinion without reservation, but he now treats that important section as though it had never been penned. Justice Scalia’s opinion here picks up on the late Chief’s theme, noting that the Corps’ interpretation of the Clean Water Act “presses the envelope of constitutional validity.” The simple fact is that regulation of water pollution is, in our federal system, a function for the states and not for the federal government unless the pollution interferes with interstate commerce (and even then, for regional problems the Constitution’s sets out, as an intermediary step before nation-wide regulation, the ability of adjoining states to enter into multi-state compacts to deal with their common regional problems).
Ignoring the Constitution’s text is not a hopeful sign from any Justice, but it is particularly troubling from one who holds “swing-vote” power.
More discussion of the constitutional authority (or lack thereof) of the federal government to preempt state environmental laws under the supposed authority of the interstate commerce clause is available in an article I published last year in the CATO Supreme Court Review, which is available online at SSRN (click on download icon on the upper left).