The United States Supreme Court (Supreme Court) recently heard oral argument in a criminal case that could significantly affect how courts interpret the United States Environmental Protection Agency (EPA) and United States Army Corps of Engineers (USACE) permitting jurisdiction under the Clean Water Act (CWA). Currently, the scope of EPA and USACE permitting jurisdiction for “waters of the United States” is governed by the Supreme Court case Rapanos v. U.S., 547 U.S. 715 (2006) (Rapanos). Rapanos is a plurality opinion where the justices split their votes 4-1-4; i.e., four affirming (Justice Scalia (author), Chief Justice Roberts Jr., Justice Alito, and Justice Thomas), one concurring (Justice Kennedy (author)), and four dissenting (Justice Stevens (author), Justice Souter, Justice Ginsburg, and Justice Breyer (author)). As a result, the Rapanos case does not have a clear majority controlling opinion. Plurality opinions, like Rapanos, are governed by a ruling from the Supreme Court in Marks v. U.S., which explained “the holding of the court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.” Marks v. U.S, 430 U.S. 188, 193 (1977) (Marks). Applying the Marks rule to Rapanos has caused incredible confusion in the lower courts, and a nationwide split in how the Federal Circuit courts decide the extent of EPA and USACE permitting jurisdiction. The criminal case, Hughes v. U.S., No. 17-155, (11th Cir. Nov. 1, 2017) (Hughes), that the Supreme Court heard last Tuesday, March 27, 2018, presents an opportunity for the high court to revise the Marks rule on how courts treat plurality opinions.
In oral argument for Hughes, the Supreme Court justices seemed hesitant to change the long-standing Marks rule. In Hughes, petitioner Erik Hughes is appealing a ruling that he is not eligible for a reduction of his prison sentence based on a plurality opinion. Mr. Hughes argued that the Supreme Court should do away with the Marks rule and only have lower courts treat majority opinions as case precedent. A plurality opinion would only create precedent if the concurrence is a “logical subset” of the majority ruling. Otherwise, plurality opinions would not create binding precedent. Chief Justice John Roberts Jr. expressed his opinion that “[i]f I’m a court of appeals judge it seems to me the most important thing in deciding the case is to make sure that I’m not reversed.” According to the Chief Justice, the best way to do that is to look at the facts of the case before you, and bounce them off existing Supreme Court precedent to find out which decision would result in a majority of the justices agreeing. This reasoning is aligned with the Marks rule because under the rule the “narrowest grounds” for a decision will necessarily have the four plurality justices and the single concurrence all in agreement. Other Justices expressed concern that overturning Marks would unleash “chaos” in all of the cases that were decided by a plurality opinion, Rapanos being only one of them. Justice Ruth Bader Ginsburg did agree, however, that the Marks rule asks the lower courts to “pretend” that there was precedent set when, in fact, there was no majority opinion. It remains to be seen how the Supreme Court will decide Hughes, but it appears that there is not a majority of Justices that are interested in fashioning a new rule at this time.
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