SCOTUS hears first big environmental case without Scalia

By Eric Wolff

The Supreme Court hears arguments this morning in the first major environmental case to come before justices since the death of Antonin Scalia last month. The case, U.S. Army Corps of Engineers v. Hawkes Co., Inc., deals with whether landowners can go to court to appeal jurisdictional determinations made by the Corps about which streams and wetlands on a property are subject to Clean Water Act protections. Those protections can carry steep economic consequences for industries ranging from oil and gas to farming to homebuilding.

Hawkes Co., a peat-mining enterprise based in North Dakota, is represented by the Pacific Legal Foundation, whose attorneys won a unanimous ruling from the high court in a 2012 wetlands case making EPA compliance orders judicially reviewable. The foundation’s attorneys argue the Hawkes case is simply an extension of the justices’ decisive ruling four years ago, and they have been expecting a big win even without Scalia. But the government argues the determinations are merely a courtesy, not even mentioned in the Clean Water Act, and aren’t a final agency action eligible for judicial review. Moreover, the government notes in briefs, the corps issues tens of thousands of permits each year — enough to clog the courts if applicants seek reviews.

Early hints on WOTUS? The jurisdictional determination made in the Hawkes case came long before the Obama administration’s controversial Waters of the U.S. rule, but WOTUS will almost certainly come up in oral arguments. Industry groups and property rights activists argue the new rule defining which creeks, bogs and marshes merit federal protection makes the Hawkes case all the more critical. “It does make our case more important because if the government is going to try to expand its authority, as it is clearly trying to do under this new rule, landowners need to have the right to go to court to challenge that overreach,” said Mark Miller, one of the PLF attorneys on the case.

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