Justice Scalia Could Help Senator Feinstein Understand the Clean Water Act

John Park / June 30, 2010

In her questioning of Elena Kagan yesterday, Sen. Dianne Feinstein (D-CA) asked about the degree to which courts should defer to agency constructions of statutes, pointing to a 2006 Supreme Court decision regarding the Clean Water Act (CWA) that left intermittent seasonal streams unprotected.

Kagan told Senator Feinstein she did not know of the specific decision and, instead, explained the general principles of judicial deference to agency constructions of statutes passed by Congress.  In doing so, she correctly referred to the Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

It is unfortunate that Justice Scalia was not there to answer Senator Feinstein’s question Not only is he an authority on administrative law, he wrote the plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), the decision that Senator Feinstein criticized. As both Scalia and Kagan know, the first part of the Chevron analysis looks at whether the agency’s interpretation is “based on a permissible construction of the statute.” (more…)