Pending High Court Case May Upend Precedent Of Landmark CWA Ruling

摘要

A criminal case set for March oral argument at the Supreme Court could upend the interpretation of the court's landmark 4-4-1 ruling from 2006 that created competing tests for how to determine the Clean Water Act's (CWA) scope, because the criminal case raises the question of how to read a 4-4-1 ruling that sets no clear precedent. The case therefore offers the opportunity to clarify the fractured 2006 CWA case, Rapanos v. United States, that created over a decade of confusion on the law's reach. The Obama EPA adopted Justice Anthony Kennedy's test for jurisdiction in its 2015 rule delineating the CWA's scope. But President Donald Trump has directed EPA to repeal the rule and consider issuing a narrow policy based on an alternative test from the late Justice Antonin Scalia backed by three other justices. Four other justices dissented from both tests, calling for an even broader jurisdiction test.