Environmental Drafting and Negotiating

Professors Cannon and Setear

Spring Semester, 1999

University of Virginia School of Law


Discussion Questions for Monday, January 25


Purpose: The overall purpose of Monday’s class is to examine how courts interpret federal administrative rules promulgated under the authority of a statute enacted by Congress.

Rationale: This class is one of a series of Background Sessions designed to make the simulations more interesting and more realistic. Last week, we reviewed the Clean Water Act, the primary statute of interest in the course. (It is also the statute of interest to the Court in Riverside Bayview Homes.) In the next few classes after this one, we’ll examine the legislative process, mostly from the perspective of legislators. This class essentially examines legislation and rule-making from the perspective of the judiciary, who after all have quite a bit to say about what legislation and rules actually mean. So an understanding of how courts interpret federal administrative rules promulgated under a federal statute is presumably an important part of an overall understanding about what the outputs of the legislative and rule-making processes mean.


United States v. Riverside Bayview Homes, 474 US 121 (1985).

Below are two primary questions intended, against the backdrop of Riverside Bayview Homes, to elicit a discussion about how courts interpret federal administrative rules promulgated under the authority of a statute enacted by Congress. (A slightly different version of the first primary question will be the only discussion question for City of Chicago v. EDF.)

Below these two primary questions are a set of secondary questions. The secondary questions address questions not so tightly focused on section IV of the opinion or on the interpretation of rules and statutes. Nonetheless, especially since you may have already examined Riverside Bayview Homes in other courses with an eye towards the statutory- and rule-interpretation questions, we thought that you might find the secondary questions useful. There’s no way that we’ll get to all of the secondary questions in class, but you should be prepared to talk about a few of them that you found interesting to answer. (There are no secondary questions for of City of Chicago v. EDF.)


Primary Questions

The most important part of this case for the purposes is Section IV (pp. 131–139), in which the Court concludes that the Corps of Engineers’ regulations include the land owned by Riverside Bayview Homes within the section 404 permitting scheme for dredge-and-fill operations.

(1) What texts does the Court use, and how does it use them, to buttress its conclusion?

(2) In light of the Court’s opinion in this case, what other lands do the Corps’ regulations include within the section 404 permitting scheme?


Secondary Questions 

(1) Why does the Corps of Engineers want to include these wetlands within the section 404 permit scheme?


(2) Is Section IV of the opinion the only place at which the Court implicitly or explicitly exercises deference to the actions of an administrative agency?


(3) Does this footnote tell you anything about the politics of wetlands regulation?


(4) The Reporter’s Syllabus of the case ends with the statement, "White, J., delivered the opinion for a unanimous Court." Are the opinions of the Supreme Court typically unanimous? What can we infer about this case from the fact that the nine Justices all agreed? (You can tell that all nine agreed because the Reporter’s Syllabus does not state that one or more Justices did not participate in the hearing or decision of the case.)

(5)  Footnote 2, on page 124, states in its entirety:

"The regulations [of the Corps] also cover certain wetlands not necessarily adjacent to other waters.  See 33 CFR 323.2(a)(2) and (3) (1985).  These provisions are not now before us."

There are, of course, all sorts of provisions not before the Court in this case. Why does the Court mention—only to say nothing about—these provisions in particular?


(6) What principle(s) of statutory interpretation is (are) at issue in Section II of the opinion?


(7) Under the reasoning of page 128 of the opinion, when will a taking ever be unconstitutional under the Fifth Amendment?


(8) Except for describing the respondent’s land as "80 acres of low-lying, marshy land near the shores of Lake St. Clair in Macomb County, Michigan," the Court does not actually describe the respondent’s land until the bottom of page 130 of the opinion (where, by the way, it mentions a "Black Creek" but not Lake St. Clair). Shouldn’t courts put the facts of the case at the beginning of their opinions?


(9) From the point of view of reading the language of a statute and interpreting what it means, isn’t this an absurd case?


City of Chicago v. Environmental Defense Fund, 511 US 328 (1994).


What texts do the majority and dissenting opinions of the Court each use, and how does they use them, to buttress their respective (and opposite) conclusions?