Neither factor holds here. Had the liberals won the case, ratifying the EPA’s interpretation of existing statute, Congress could have voted the next day to change its instructions to the bureaucracy, mandating that its regulators consider costs in whatever way Congress wants. Alternatively, a future president could direct the bureaucracy to change course. And the relative deference that the bureaucracy pays to the legislature isn’t something that will ever be effectively locked in. Conservatives may prefer the existing decision and be averse to seeing it overturned. But even if it was overturned, the matter would not be permanently settled any more than it is now, and Congress or a conservative president could check any excesses that flowed from the liberal precedent for as long as it was in place.
What’s more, reading the majority opinion and the dissent, it seems fantastical to characterize the latter’s position as “hard left,” especially with so many conservatives justices hellbent on giving the national-security bureaucracy broad deference.
Rapanos v. United States
This case involves a part of the Clean Water Act that makes it illegal to discharge dredged or fill material into “navigable waters” without a permit. It defines “navigable waters” as “the waters of the United States, including the territorial seas.” Federal authorities brought charges against someone for discharging material into ditches and man-made drains that eventually emptied into navigable waters.
Did the feds have jurisdiction?
The four conservatives said no, “navigable waters” does not include “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Otherwise the feds could regulate everything.
The four liberals dissented. Come on, they said, we’re talking about wetlands adjacent to navigable waters, not a drainage ditch. “The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow,” Justice Stevens wrote. “The Corps’ resulting decision to treat these wetlands as encompassed within the term ‘waters of the United States,’” he reasoned, “is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.”
Justice Kennedy split the difference:
...in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a “navigable water” under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.
Again, even if we presume that the conservatives have this case right on the merits, and that a future liberal court would side with Stevens, any Congress could compel the EPA to operate under a narrower interpretation, as could any president who wanted to force the issue. It is hard to see how such a hypothetical decision would be a permanent victory for anyone, let alone a permanent victory for “the hard left.” Hewitt characterized the stake of these last two cases as “losing control of the agencies.” But Congress will always retain the power to defund any agency.