A post at SCOTUS BLOG leads with the headline: : "U.S. seeks clarity on Rapanos ruling." This is good news but a change of heart for the government. Every time PLF has asked the High Court to clarify Rapanos (as with its Johnson and Gerke petitions) the Solicitor General has opposed the request. Of course, this is the first time a court of appeals has reversed a conviction under the Clean Water Act since the Rapanos decision. In U.S. v. Robison the 11th Circuit declared that the controlling opinion in Rapanos is the Kennedy "significant nexus" test. But, the government is asking the Supreme Court to endorse its view that the Corps and EPA can establish Clean Water Act jurisdiction under EITHER the plurality test or the Kennedy test.
This statement in SCOTUS is therefore incorrect: The new appeal contends that the proper way to read the Rapanos decision is to apply the view “endorsed by eight Members of this Court in Rapanos — the four-Justice plurality and the four dissenters.”
Although PLF has always maintained that the proper way to read Rapanos is to apply the plurality view, that is not what the government is arguing. Instead, it is arguing that the Corps and EPA should have it both ways; that they should be able to establish jurisdiction using the plurality test or the Kennedy test, whichever is most convenient to the government. Let's hope the Supreme Court does its duty and takes the case to offer some badly needed clarification of the Rapanos decision.
You can read the government petition here.