Words and Worlds: The Supreme Court in Rapanos and Carabell

Abstract

This paper explores the expression of competing worldviews in the opinions of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers. An “ecological” worldview identified with modern environmentalism appears in Justice Steven’s dissent and in Justice Kennedy’s concurrence in these cases. An opposed “atomistic” worldview is evidenced in Justice Scalia’s plurality opinion. These competing worldviews reflect different beliefs and values held by the justices affecting environmental regulatory cases such as Rapanos. The atomistic worldview is consistent with values of individual autonomy and mastery of the physical environment for economic advancement, the ecological worldview with values of individual restraint in support of a common good and fitting harmoniously into the natural and social environment. These competing worldviews, and their associated values, have contrary implications for law. Justices embracing the ecological worldview tend to favor a broad scope of federal regulatory power, limited property rights, and general interpretations of environmental regulatory authority. Justices resisting this worldview tend to have contrary views on these issues. The paper also argues that the same values that animate the substantive differences of the justices in cases such as Rapanos also may affect the justices’ preferences for interpretational approaches. That is, the values that lead justices to be more or less accepting of the ecological model are also among the values that may influence justices to be textualists or intentionalists.