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Toward a Constitutional Chevron: Lessons from Rapanos

In 2006, the Supreme Court started a revolution in environmental law.  In Rapanos v. United States, while addressing jurisdiction over wetlands under the Clean Water Act, the Court purported to clarify an issue of statutory interpretation. In reality, the Court had reentered the fray in a four-way struggle for supremacy in constitutional meaning.  This struggle involves all three branches of government and, to a large extent, the federal agencies that implement the Constitution as part of their everyday function:  the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA).

The Rapanos decision was widely criticized when it was handed down, but there has been no real empirical analysis of how the decision has affected the agencies’ on-the-ground interpretations of their own jurisdiction.  In this Comment, I examine the fallout from Rapanos—beginning with its impact on the judicial, legislative, and executive branches—and then focus on its impact on the Corps’s process for determining its own jurisdiction.  Procedurally, the main effect of the decision has been to add density to the Corps’s already onerous permitting process.  Substantively, the decision has forced the Corps to add an unnecessary judicial gloss to its scientific determinations, imposing court-like reasoning onto professional engineers.  Perhaps worst of all, the increased enforcement costs of these changes have been shifted to the regulated community.  All players in the game—developers seeking quick disposition of permitting requests, environmentalists pursuing wetlands protection, and agency personnel tasked with making jurisdictional determinations—have come out as losers after Rapanos.


Based on these findings, I propose a radical shift in judicial review of agency constitutionalism and argue that the Court should apply the Chevron doctrine to certain agency constitutional interpretations.  In particular, where Congress has clearly delegated constitutional definition to an agency and such definition implicates agency expertise, courts should explicitly grant Chevron deference to the agency constitutional interpretation.  This paradigm would allow Congress the broadest possible latitude in exercising its power and would restore the institutional benefits lost when courts impose judicial constraints on administrative agencies that operate differently from the courts by design.  Thus, when Congress clearly delegates constitutional interpretation to agency expertise, the judiciary should defer to the agency’s interpretations so long as they are reasonable.