And on a Clean Water Act case, no less, and with two conservatives — Roberts and Kavanaugh — joining the four Dems for a 6-3 ruling on County of Maui. This Texas ag lawyer's state Extension site blog has some excellent takes.
Given today's court tenor, especially, this is surely the best that can be expected.
Re the three dissenters, yes, the Supreme Court does sometimes make law.
Contra the three dissenters, this is nothing new. Statutory rules of regulatory agencies can't anticipate in advance every issue and, as the majority notes, if they tried to, they would set themselves up for evasion by loopholes.
The functional equivalent standard sounds reasonable, as long as future courts don't erode it. This court held that a functional equivalent DID exist in this case. (Oh, so much for all of Hawaii being pristine environmentalists, eh?) That said, let's note Roberts' joining the majority on Obamacare to set up a tool for later carve-outs.
Anyway, the case was remanded, presumably back to the district court level. But, with time and distance being the big standards, and given the district court's original ruling, I can't but see that it will hold for the environmental plaintiffs again and that the appeals court would refuse a new appeal.
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