Surprising no one, lawyers for EPA and the US Army Corps of Engineers have implored the Supreme Court to affirm the Ninth Circuit Court of Appeals' application of Justice Kennedy's "significant nexus" test for determining the reach of the Clean Water Act in the Government's latest skirmish with the Sacketts of Idaho about whether their house lot is or isn't a Water of the United States.   

As many of you know, the Sacketts are in the unique position of having the Supreme Court agree to hear from them not once but twice during their decade and a half long tangle with EPA over filling on their less than one acre lot which may or may not be deemed "adjacent" to Priest Lake, a Water of the United States.  On October 3, its first day of oral argument in the fall term, the Supreme Court will hear more from the Government and the Sacketts on whether a wetland separated from an unnamed tributary to Priest Lake by a road is also a Water of the United States.

Reading the Government's brief is an efficient way to catch up on 40 years of dereliction by Congress and what has happened in the courts and at EPA and the Corps in the meantime.   

It is most certainly true, as the Government's brief reports, that in 2006 now Chief Justice Roberts suggested that notice and comment rule making by the Government might have avoided Supreme Court meddling in EPA's interpretation of the Clean Water Act.

But it remains to be seen whether the Chief Justice still has the same faith in rule making he had in 2006 in the face of the three contradictory "significant rulemakings" between 2015 and 2020 that the United States references in its brief.  As many of you know, the first of those rulemakings materially expanded the reach of the Clean Water Act, the second materially contracted it, and the third would restore it to almost the same extent as the 2015 rule making.  All three rules purport to be consistent with prior opinions of the Supreme Court.   

The fact is that the "significant nexus" test the Government advocates didn't command the support of a majority of the Supreme Court at the outset.  Three of the Justices who rejected that test then (including the Chief Justice) are all still in their seats, joined by Conservative Justices Gorsuch, Kavanaugh and Coney Barrett.

Add to that the fact that in the last term the Supreme Court overturned fifteen of the sixteen Ninth Circuit decisions it reviewed and you get a pretty clear picture of the uphill battle the Government faces in advocating that the Supreme Court should leave EPA, the Corps and the Ninth Circuit alone.

I think the Government's lawyers see that writing on the wall which is why the Government also argues that the Sacketts' property is adjacent to a Water of the United States.  Yes, the Government's assertion of adjacency is hinged to its support of the "significant nexus" test but it allows for the Court to fall back on pre-significant nexus precedent allowing the regulation of adjacent wetlands under the Clean Water Act. 

The Government also tells the Court that the "mere presence" of a barrier, like a road, shouldn't stand in the way of Clean Water Act coverage if there is a significant nexus between the would-be jurisdictional area and a Water of the United States.  That seems a lot like Justice Breyer's "functional equivalence" thinking adopted by the Court in the Maui Clean Water Act case in holding that a discharge to groundwater is covered by the Act if it is the functional equivalent of a direct discharge. Interestingly, the Government doesn't mention Maui, which the Supreme Court decided only two years ago, and there's a very real question whether the current Supreme Court would decide the case the same way.

Will the Supreme Court defer to the Ninth Circuit and EPA?  I think there's been too much water over that bridge but the Government has done the best it can with what it has been handed as the longest running controversy in environmental law continues.