WOTUS and Asahi

As a first year law student, I took a class called Civil Procedure, which has to do with the way that lawsuits are conducted. Civil Procedure attempts to answer all of the questions we never think about but which must be answered – which court to file a case in, how to properly file a complaint, how to add a party to a case, etc. Needless to say, the subject is rather tedious. However, as I was reading some of the cases for the course, I noticed that there were a few trends in civil procedure jurisprudence that paralleled the development of the infamous Waters of the United States (WOTUS) Rule, which I have discussed in some detail in this blog post: https://enviroculture.wordpress.com/2017/05/18/water-works-follow-up/. This was particularly interesting given the current policy discussion about possibly removing the WOTUS rule entirely. I understand that this may sound, at this point, like an arcane bit of meaningless legal jargon, but bear with me as I invest a few paragraphs into trying to draw a few meagerly interesting parallels.

Asahi Metal Industry Co. v. Superior Court

This was a case that dealt with a vehicle accident that happened in California because of a defective part that was made in Taiwan by Asahi Metal Industry Company. The question was whether or not the state of California had jurisdiction over the case (in other words, whether or not they could decide the issue). The answer to this question depended on whether or not Asahi had intentionally connected with the state of California. The justices split evenly in their reasoning. One side, led by Justice O’Connor, said that Asahi would have had to specifically target the state of California with its products in order for California to have jurisdiction over it. This approach was all about intentionality and purpose. The other side, led by Justice Brennan, said that all Asahi would need to do to be subject to jurisdiction in California was to simply put its products in the broader “stream of commerce.” This approach basically focused on whether or not Asahi simply made its products available and had the knowledge that they might eventually end up in California.

McIntyre Machinery, Ltd. v. Nicastro

The viewpoints expressed in Asahi were solidified in the McIntyre case. One side, led by Justice Kennedy, stated that New Jersey jurisdiction over the foreign company (McIntyre Machinery from London) would only be possible if McIntyre had intentionally targeted the state in question. (Sounds familiar, right?). The other side, led by Justice Ginsburg, stated that if McIntyre simply put its products in the “stream of commerce” with the knowledge that they might eventually end up in New Jersey, it would be subject to jurisdiction in the United States. As you can see, the viewpoints here are practically identical to those expressed in Asahi. In both cases, there is a faction that bases jurisdiction on intentional targeting of the state as well as a faction that bases jurisdiction on simply utilizing the general stream of commerce.

Now we come to WOTUS. WOTUS was precipitated by the case of Rapanos v. United States, which dealt with issues of water regulation. The rule was meant to clarify all of the missing pieces in the Clean Water Act (CWA) regarding which waters were regulated and which were exempt. What constitutes a navigable water? Which waters are exempt from regulation? What about marshes or agricultural fields that are only waterways for a part of the year?

The facts of Rapanos aren’t relevant to our analysis, but the reasoning is. The court split evenly and no decision was reached. One side, led by Justice Kennedy, stated that the CWA could regulate wetlands that significantly affected other waters; this approach obviously incorporates almost every single wetland in the country. The other side, led by Justice Scalia, stated that the CWA could only regulate wetlands that had a clear connection to other bodies of water. However, since no majority opinion won the day, we are forced to continue without clarity. These viewpoints bear a striking resemblance to the viewpoints in the decisions mentioned above. Kennedy’s Rapanos opinion is about general and broad connection while Scalia’s Rapanos opinion is about a specific and traceable connection. In a sense, we can see the jurisdictional battles of the past century played out in the way that debates about our nation’s waterways are constructed.

At the risk of receiving criticism, I will offer my personal viewpoint as a way to stimulate your thought process on the issue. I believe it is especially timely to reconsider WOTUS during this time of debate over whether or not the rule should be repealed (You can go back to my other blog post on WOTUS to get my viewpoint on the rule as a whole). Regarding the issue discussed above, I would argue that the more limited approach is the better one. This is because the more expansive approach would include far too many bodies of water in the regulatory reach of the rule and would therefore be overly oppressive to farmers around the country. It would also be nearly impossible to enforce, given how many standing bodies of water accumulate seasonally in fields and marshes all over the country. Take, for example, the recent case in California where a farmer was taken to court for simply plowing his own field (https://www.usatoday.com/story/news/nation-now/2017/05/24/farmer-plowing-fine/339756001/). Because the WOTUS rule extended onto his personal property due to seasonal water accumulation that gathered in certain parts of his land, he was charged for simply trying to plant his corn on time. He was acting, as any responsible citizen would, in response to a market demand. (That’s a whole different problem – see my post “The Ripple Effect” for more on that – https://enviroculture.wordpress.com/2017/06/14/the-ripple-effect/). What happens when an economic framework and a legal framework incentivize directly opposite actions? Are we sure that we want to have the kind of public policy would result from implementing Justice Kennedy’s opinion? I would submit that it would be a policy that comes dangerously close to the line between state power and private property. From a constitutional standpoint, it would behoove us to stay a comfortable distance away from that line.


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