Bloomberg has published the United States Chamber of Commerce's amicus brief in the Rapanos case. As many of you know, the Supreme Court of the United States is using this case to consider (again) the jurisdictional reach of the Clean Water Act.
I've predicted that the conservative majority of the Supreme Court will take this opportunity to drive a stake through the heart of the "significant nexus" test for determining whether something is a "Water of the United States" that is currently the law of the Ninth Circuit, and other places, and the foundation for EPA's pending eighth attempt to "durably" answer this question.
I've also written that the Supreme Court is unlikely to adopt the Sacketts' alternative (see https://insights.mintz.com/post/102hmln/i-doubt-the-supreme-court-will-adopt-the-sacketts-test-for-determining-clean-wat).
The Chamber of Commerce presents a simpler alternative in a brief very well written by lawyers at Hunton Andrews Kurth. That alternative is to adopt the definition of Waters of the United States that has already won the approval of three Supreme Court Justices (including the Chief Justice) the last time the Supreme Court considered the question.
The Chamber of Commerce anticipates the argument that the "policy and purpose" of the Clean Water Act might very well suggest a broader interpretation of the Act but then presents the several recent Supreme Court decisions holding that shouldn't matter. I think the three Justices who have already adopted the Chamber of Commerce's position aren't going to have a very hard time finding two of their newer colleagues to join them in that view.
Of course Congress could take the question out of the Supreme Court's and EPA's hands but, if the past 30 years are prologue, that isn't likely. The Clean Water Act deserves a better fiftieth birthday present.
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