Rapanos: Victory for Property Owners

TIMOTHY SANDEFUR interviews Reed Hopper, an attorney in the Rapanos case. Here are some of the questions and answers I find interesting:

1. Do you see Rapanos as a victory for property owners, or as a victory for government regulators?

I see this case as a victory for property owners. While Mr. Rapanos did not get what he hoped—a clear delineation of federal authority under the Clean Water Act—he did get what he asked—a majority of the court rejected the agency view that it can regulate any area over which water flows and reversed the Sixth Circuit decision. Property owners have at least some protections now from unlimited federal regulation.

2. Why did you take Mr. Rapanos' case?

We took the case to clarify the scope of the Clean Water Act and to ensure constitutional safeguards against federal overreaching are maintained. In this case the Army Corps of Engineers and the EPA assumed they had a blank check to define their own authority. They simply went too far. In 2001, the Supreme Court told these agencies it could not regulate every wet area in the country and that the language of the Act is controlling. But the agencies ignored that decision. We took the Rapanos case so that the Supreme Court could affirm that it meant what it said.

5. Linda Greenhouse says that the Rapanos case "came close to rolling back one of the country's fundamental environmental laws." Is that right?

Well, it's odd to say the court is "rolling back" the law when the justices are simply reading the act as written.

The challenged provision does not even mention wetlands, and the Corps has not been regulating drainage ditches until recently. In fact, the Corps has publicly affirmed time and time again that it does not regulate drainage ditches. But it did so in this case, without so much as a formal rulemaking.

But I think we came close to rolling back the country's fundamental charter—the U.S. Constitution. Had the dissent had its way, federal agencies would have had a green light to define their own jurisdiction no matter what their statutory authority said. In other words, federal agencies could have been authorized to become a law unto themselves. This was a near miss.

6. What do you say to people who portray Scalia's decision as "anti-conservation," or say it will destroy the government's power to protect the environment?

Nonsense to both. It is not anti-conservation to require federal agencies to comply with the law. If the environment is worth protecting—and it is—it's worth protecting by legal means. Enforcing the rule-of-law protects us all from arbitrary government. Liberty has a price. Justice Scalia, as well as Justices Thomas, Alito and Roberts, should be commended for remembering that. And, of course, in this case the price would have been small both because the majority would have placed only a constraint on federal Clean Water Act authority, not a prohibition, and because the states have authority to fill in any regulatory gaps.