Former Officials See High Court 'Deal-Cutting' to Avoid Sackett Plurality
Dave Ross and Anna Wildeman, attorneys in Troutman Pepper's Environmental + Natural Resources Practice Group and hosts of the Reflections on Water podcast, are quoted in the Inside EPA article, " Former Officials See High Court 'Deal-Cutting' to Avoid Sackett Plurality."
In a podcast with Anna Wildeman, Dave Ross suggests that if the justices had to issue a ruling immediately after oral argument, it might result in a plurality ruling, just as the last high court ruling on CWA jurisdiction did in Rapanos v. United States.
"If they did a live poll of the justices in the moment, I would not be surprised if the initial poll for how a case like this would come out, we'd be looking at another plurality," Ross said, adding that it "should terrify people to hear the word plurality again."
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However, given the confusion that has resulted from the Rapanos 4-1-4 plurality ruling, "I don't think the justices, particularly the chief justice, allows that to happen, and so I think there'll be some deal-finding" he added.
Whether the middle four justices drift to the left or to the right "is an interesting question," but they will likely "try to avoid another plurality situation at all costs," resulting in "some deal-cutting," although there was not enough clarity from the oral argument to predict how the final ruling ends up, he said.
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Wildeman said in the podcast that she did not hear anything in the oral argument that would derail EPA and the Corps' plan to issue the final interim WOTUS rule this fall.
"If the justices had given a strong signal or if there was a strong majority that appeared to want to kill the significant nexus test," outlined in Rapanos, "I think that there would be a little bit of a pause in the process, and EPA would want to take a close look at that and maybe revisit what's in their final rule," Wildeman said. "But that didn't really happen during the oral argument."