Bobby Magill of Bloomberg has published a concise summary of the two hours in the Supreme Court yesterday during which attorneys for the United States of America and the Sacketts of Idaho were grilled on the reach of the Federal Clean Water Act to wetlands.

As reported by Mr. Magill, one of the most surprising developments of the morning was the apparent ambivalence of the Conservative majority about late Justice Scalia's "continuous surface water connection" test for determining the reach of the Clean Water Act.

Three of the current Justices, including Chief Justice Roberts, supported that test the last time the nation's highest court considered this question. That meant that, unless one of those Justices has since changed their mind, only two out of Justices Gorsuch, Kavanaugh, and Coney Barrett would need to join for Justice Scalia's test to be the law of the land. That, in turn, would mean the Federal law would have a dramatically narrower reach than it has had for most of the past half century.

But, as Mr. Magill reports, it isn't clear that Justice Scalia's test will carry the day. In fact, Justices on both the left and the right were eager to find an alternative to both the Scalia test and Justice Kennedy's "significant nexus" test which is, for now, still the law of the Ninth Circuit and also the point of departure for EPA's most recent proposed regulations.

We already know that a majority of the Supreme Court is disinclined to wait for EPA to take an eighth turn at the regulatory plate.

Two and a half years ago the Supreme Court answered a different question about the reach of the Clean Water Act in Hawaii Wildlife Fund v. Maui. In that case, the Court rejected both the Federal Government's view and the respondent's view on the way to coming up with the "functional equivalence" test for determining the reach of the Clean Water Act to groundwater. While the makeup of the Court is much different now than it was then, it could be, for all the talk about deferring to Congress and the "major questions" doctrine, we're about to see the nation's highest court come up with its own test again. In the meantime Congress continues to sit on its hands.

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