Privileged and ConfidentialAttorney-client Privileged
Justice Kennedy did not join the plurality's opinion but instead authored an opinionconcurring in the judgment vacating and remanding the cases to the Sixth Circuit Court ofAppeals.
at 2236-52.' Justice Kennedy agreed with the plurality that the statutory term"waters of the United States" extends beyond water bodies that are traditionally considerednavigable.
t 2241. Justice Kennedy, however, found the plurality's interpretation of thescope of the CWA to be "inconsistent with the Act's text, structure, and purpose[,]" and heinstead presented a different test for evaluating CWA jurisdiction over wetlands.
t 2246.Justice Kennedy concluded that "wetlands" are "waters of the United States" "if the wetlands,either alone or
combination with similarly situated lands in the region, significantly affect thechemical, physical, and biological integrity of other covered waters more readily understood as'navigable.' When, in contrast, wetlands' effects on water quality are speculative orinsubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigablewaters."'
t 2248.2Four justices, in a dissenting opinion authored by Justice Stevens, concluded that EPA'sand the Corps' interpretation of "waters of the United States" was a reasonable interpretation ofthe Clean Water Act.
t 2252-65.3When there is no majority opinion in a Supreme Court case, controlling legal principlesmay be derived from those principles espoused by five or more justices.
Marks v. United
188, 193-94 (1977); Waters v. Churchill, 511 U.S. 661,685 (1994) (Souter, J.,concurring) (analyzing the points of agreement between plurality, concurring, and dissentingopinions to identify the legal "test
hat lower courts should apply," underm,as theholding ofthe Court);
League of United Latin American Citizens v. Perrv, 126 S. Ct. 2594,2607 (2006) (analyzing concurring and dissenting opinions in a prior case to identify a legalconclusion of a majority ofthe Court); Alexander v. Sandoval, 532 U.S. 275,281-282 (2001)(same).
regulatory jurisdiction under the CWA exists over a water body if either theplurality's or Justice Kennedy's test is satisfied. 126 S.Ct at 2265 (Stevens,
dissenting)rLGiven hat all four justices who have joined this [dissenting] opinion would uphold the Corps'jurisdiction in both of these cases
and in all other cases in which either the plurality's or Justice
While Justice Kennedy concurred in the Court's decision to vacate and remand the cases to theSixth Circuit, his basis for remand was limited to the question of "whether the specific wetlandsat issue possess a significant nexus with navigable waters." 126 S.Ct. at 2252. In contrast, theplurality remanded the cases to determine both "whether the ditches and drains near eachwetland are 'waters,"'& "whether the wetlands in question are 'adjacent' to these 'waters' inthe sense of possessing a continuous surface connection
t 2235.Chief Justice Roberts wrote asepaiate concurring.opinion explaining his agreement with theplurality. 126 S.Ct. at 2235-36.
Justice Breyer wrote a separate dissenting opinion explaining his agreement
JusticeStevens' dissent. 126 S.Ct. at 2266.