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March 31, 2016
David Sunding’s Research Cited in Arguments before the Supreme Court of the United States

Brattle Principal David Sunding’s research was cited in arguments before the Supreme Court of the United States (SCOTUS) on Wednesday, March 31, 2016. This case, Army Corps of Engineers v. Hawkes, concerns the administrative enforcement of the Clean Water Act (CWA). Specifically, it focuses on the whether or not a jurisdictional determination issued by the Corps that a property contains jurisdictional wetlands can be viewed as a final agency determination.

Hawkes Co., the business fighting the case, argued that the process of obtaining a discharge permit under the CWA is time-consuming and expensive. Hawkes Co. began the permitting process in 2010, but after receiving a preliminary decision, evaluating the cost of proceeding in the process, and administratively appealing an “Approved Jurisdictional Determination” (JD), sued the Corps in 2013. Their 2013 suit alleged that the JD violated the Administrative Procedure Act (APA) since it was arbitrary and capricious. A district court dismissed the initial suit for lack of a final agency determination, but the Eight Circuit reversed. SCOTUS is now evaluating the case, and will be issuing a final verdict on whether or not a JD can be considered final for APA purposes.

The issues raised by Dr. Sunding’s research on the costs of the CWA permitting process were discussed at length by the Court. Working with a Berkeley colleague, he implemented a survey of project developers to calculate the costs of preparing and negotiating typical CWA discharge permits. His work demonstrated that these costs can run into the hundreds of thousands of dollars, and result in significant delays in project completion.

Review Bloomberg's recent article for more information about the case.