The Nickel Report

When can Supreme Court precedent be overruled? Two recent decisions carry on a recent and lively debate among the Justices over the concept of “stare decisis,” and provide significant guidance on how Justices Thomas and Kavanaugh approach the question.

Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws.

Hunton Andrews Kurth’s environmental practice launches its video series, Inside Look, focusing on recent events and trends impacting regulated industries through discussions with our top attorneys and thought leaders.  Our inaugural video focuses on recent changes in the composition of the US Supreme Court and the potential impact on industry.  Partners F. William Brownell and Elbert Lin discuss the effect of the appointments of Justices Neil Gorsuch and Brett Kavanaugh on administrative law, voting patterns at the Court and the importance of originalism-type arguments in constitutional cases.

Watch for more Inside Look videos from the Hunton Andrews Kurth environmental practice by subscribing to the Nickel Report and Hunton Andrews Kurth’s YouTube channel.