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Post by Admin on Dec 21, 2023 15:53:41 GMT
Welcome to the Virtual Guest Speaker list. Please post your questions or comments for Professors Johnson's lecture as replies to this thread.
Thanks,
Steve Johnson
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Post by Olivia Greenblatt on Mar 18, 2024 17:09:28 GMT
Professor Johnson,
Thank you for providing such an engaging lecture. It was shocking to see how much has changed in the Court's interpretation of the CWA over a span of about fifty years. During your lecture, I thought of a few questions mainly focusing on the implications of the Court’s decision in Sackett.
I am interested in the new "continuous surface connection" test and what exactly that means. After some additional research, I found articles expressing concerns about the test, particularly regarding wetlands experiencing temporary interruptions in surface connection due to factors such as low tides or dry spells. Do you have any thoughts on this issue? Will wetlands experiencing such a temporary interruption remain covered by the CWA during that interruption? Would that depend on the duration of the interruption? Do you anticipate Congress amending the CWA to provide clarity to the definition of wetlands and what constitutes a “continuous surface connection”?
Additionally, given the Court’s emphasis on Section 101(b) rather than the environmentally protective purpose of Section 101(a), I’m curious about the implication of Sackett on states’ authority to regulate wetlands and provide greater protections. As states have the ability to enact laws as stringent as or even more stringent than federal laws, and considering the Court's greater focus on states' rights and responsibilities, do you anticipate state legislative responses aimed at countering the narrow interpretation of the CWA and strengthening wetland protections?
Lastly, the concept of Martin-Quinn scoring was entirely new to me and I found it super interesting.
Thanks again, Professor Johnson!
Olivia Greenblatt
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Post by Admin on Mar 18, 2024 18:17:01 GMT
Olivia,
I'm glad you enjoyed the lecture and thank you for your thoughtful questions. Regarding the "continuous surface connection" question, while the Court's opinion significantly narrowed the scope of Clean Water Act jurisdiction over wetlands, my sense is that most courts would not find that a "temporary" interruption in surface connection would be sufficient to break the "continuous surface connection." As you note, though, if the "temporary" interruption extends for a sufficient time and other factors about the nature of the interruption suggest that the "temporary" interruption may not be simply temporary, I would guess that courts might find that the wetlands did not have a "continuous surface connection." I haven't seen any EPA guidance on this question yet, but I would imagine that they will take the position that temporary interruptions should not break the "continuous surface connection". After all, EPA and the Corps maintain in their regulations, and courts have generally agreed, in the past, that wetlands do not have to be wet 24/7/365 to be wetlands. That question seems to be analogous to the question about whether a temporary interruption of the surface connection renders the connection not "continuous." I would argue that the continuous refers to the geographic connection more than the temporal connection. As for Congress, I can't see Congress doing anything to clarify the ambiguity in the Court's opinion. The Supreme Court has interpreted the meaning of "waters of the United States" four times since the 1980s and Congress has introduced dozens of bills to respond to the Court's opinions but has never reached consensus on passing any of them.
Regarding the question about State efforts to protect wetlands and streams that are no longer jurisdictional under the Clean Water Act, SOME states have done so, but I don't think that there will be a groundswell of new State legislation or regulation to address the gap. When the Supreme Court decided, in Solid Waste Agency of Northern Cook County v. Corps of Engineers, in 2001, that the government could not regulate wetlands that are not adjacent to other waters of the United States but are being regulated solely because they could be used as habitat by migratory birds, a few States adopted laws or regulations to protect the wetlands that were no longer regulated as waters of the United States under the Clean Water Act, but many did not. In addition, since that time, many States have passed laws that provide that the State will not impose any more stringent limits to protect the environment than those imposed by the federal government. There are now 24 States that have adopted such laws. Those States would not be able to adopt new regulations or laws to protect the wetlands and streams that are no longer regulated after Sackett without repealing their more general "no more stringent than the federal government" laws.
Thanks for the questions,
Steve Johnson
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Post by Ivey Jorgensen on Mar 22, 2024 4:43:22 GMT
Professor Johnson,
First, I would like to say I thoroughly enjoyed learning about the progression of the Supreme Court’s interpretation of the Clean Water Act over the past fifty years. For one, I was surprised to see such a drastic shift with the evolution of the Court moving further away from a purposvist and legislative history point of view and toward being less protective of the environment as a whole. I imagined when beginning the lecture that such a shift like this was present, but I was surprised at how drastic of a shift it was when considering the charts you provided. What especially was surprising to me was how drastic of a change was made with the Roberts Court not relying on purposvism and legislative history as much as the two prior Courts had.
Now, one question I had was about the chart you provided on ideological ordering and the point you made that textualists try to claim that purposvism tends to cause activism, whereas textualism restrains activism. As you pointed out, based on the trends shown between the Burger, Rehnquist, and Roberts Courts, this theory is shown to have no merit and I was wondering in what direction you believe the Court will shift in the future. Will it continue to lean textualist, will it move back towards a purposvist and legislative history-based interpretation, or will it focus on both in some way?
Also, I was wondering if you could elaborate more on the chart that noted how the United States has over time had a decline in its success rate as a party in environmental law cases. Why has there been such a declining trend with the success rate of the United States as a party in environmental law cases when comparing the Roberts Court to the Burger and Rehnquist Courts?
Thanks, Professor Johnson!
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Post by Steve Johnson on Mar 25, 2024 0:59:34 GMT
Ivey,
Thanks for the questions and sorry for the delay in responding. On your first question, until there is a change in the composition of the Court, I don’t anticipate any shift away from textualism. Even Justice Kagan has famously remarked, “We are all textualists now.” There are occasions when the Court references purposes of a statute, but only when there is a provision in the statute that clearly references the statute’s purpose. Even then, the Court only uses the purpose to help interpret otherwise ambiguous text. I don’t foresee the Court focusing much more on purpose or legislative history any time soon.
As for the government’s success, the biggest reason the government is losing more in the Supreme Court environmental law cases is because the Court is relying less and less on Chevron deference in general, whether in environmental law cases or otherwise. In general, the Court is more reluctant to defer to agencies, too. Thus, when the government’s actions are challenged in the Supreme Court, they are losing more frequently than when the Court applied Chevron deference.
Thanks,
Steve Johnson
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