Concurrence (Kennedy)
Contents
SUPREME COURT OF THE UNITED STATES
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No. 15?290
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UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., et?al.
on writ of certiorari to the united states court of appeals for the eighth circuit
[May 31, 2016]
Justice Kennedy, with whom Justice Thomas and Justice Alito join, concurring.
My join extends to the Court?s opinion in full. The following observation seems appropriate not to qualify what the Court says but to point out that, based on the Government?s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. As Justice Alito has noted in an earlier case, the Act?s reach is ?notoriously unclear? and the consequences to landowners even for inadvertent violations can be crushing. See Sackett v. EPA, 566 U.?S. ___, ___ (2012) (concurring opinion) (slip op., at 1).
An approved Jurisdictional Determination (JD) gives a landowner at least some measure of predictability, so long as the agency?s declaration can be relied upon. Yet, the Government has represented in this litigation that a JD has no legally binding effect on the Environmental Protection Agency?s (EPA) enforcement decisions. It has stated that the memorandum of agreement between the EPA and the Army Corps of Engineers, which today?s opinion relies on, does not have binding effect and can be revoked or amended at the Agency?s unfettered discretion. Reply Brief 12; Tr. of Oral Arg. 16. If that were correct, the Act?s ominous reach would again be unchecked by the limited relief the Court allows today. Even if, in an ordinary case, an agency?s internal agreement with another agency cannot establish that its action is final, the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.
The Act, especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government?s power to cast doubt on the full use and enjoyment of private prop-erty throughout the Nation.