“Stare decisis,” Latin for “to stand by things decided,” is a doctrine of precedent, under which courts must follow earlier judicial decisions when the same issues arise again in litigation. One recent judicial opinion from the Supreme Court nominee, 7th Circuit Court of Appeals Judge Amy Coney Barrett, gives us a decision that hints at how she could approach environmental regulatory cases in the future.
In Orchard Hill Building Company v. United States Army Corps of Engineers, Judge Barrett joined an opinion that vacated an earlier court ruling upholding the Corps’ jurisdictional determination that 13 acres of wetlands in Illinois qualified for Clean Water Act protections. In the case, a residential developer requested that the Corps make a jurisdictional determination as to whether a portion of property it wished to develop contained wetlands that would qualify as jurisdictional waters of the United States under the CWA.
The Corps applied its “significant-nexus” test to determine whether wetlands that are near a jurisdictional water of the United States should also be subject to CWA jurisdiction, and determined that 13 acres of jurisdictional wetlands existed on the property “alone and in combination with other wetlands in the area.” To reach its determination, the Corps considered similarly situated wetlands in the watershed, which is a permissible consideration under CWA regulations.
However, in vacating the decision, the 7th Circuit held, “[t]he significant-nexus test has limits. … To do as the Corps did on this record – to consider the estimated effects of a wide swath of land that dwarfs the in-question wetlands, without first showing or explaining how that land is in fact similarly situated – is to disregard the test’s limits.”
Simply put, the court demanded that the Corps must do a better job of showing its work to support its conclusions.
Of course, we shouldn’t use one case to make blanket assumptions of how Judge Barrett will approach environmental regulatory cases in the future, but if we are to honor stare decisis, we can assume that Judge Barrett will not easily defer to regulatory agency decisions that were previously upheld by a lower court.
* This article first appeared in The Journal Record on October 21, 2020, and is reproduced with permission from the publisher.