Jump to Navigation
Jump to Content

<MI>Rapanos v. United States<D>: Searching for a Significant Nexus Using Proximate Causation and Foreseeability Principles

December 2010

Citation: ELR 11242

Author: Lawrence R. Liebesman, Rafe Petersen, and Michael Galano

Editors' Summary

The U.S. Supreme Court issued its decision in Rapanos v. United States more than four years ago. Because no single opinion garnered a majority of the Justices' votes, the controlling test for wetlands jurisdiction remains unclear. Although the "significant nexus" test set forth in Justice Anthony M. Kennedy's concurring opinion seems to have gained acceptance by most circuit courts, the agencies and courts still struggle to find meaning in this test. Looking at the origins of the significant nexus test, relevant case law, and guidance documents, this Article concludes that, absent congressional action clarifying CWA jurisdiction, applying the principles of proximate causation and foreseeability to Justice Kennedy's significant nexus test could help to clarify what areas can and cannot be deemed jurisdictional.

Lawrence R. Liebesman and Rafe Petersen are partners, and Michael Galano is an associate in the Environmental Practice of Holland & Knight LLP's Washington, D.C., office. The authors would like to thank Steve Kelton, formerly of Holland & Knight, who contributed significantly in the preparation of this Article.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: