The Supreme Court on Thursday cut back on the Environmental Protection Agency’s ability to regulate wetlands under the Clean Water Act, with a 5-4 majority continuing a trend in which the conservative-leaning court has narrowed the reach of environmental regulations.
The Clean Water Act extends only to those “wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights,” Justice Samuel Alito wrote for the majority.
The decision is a victory for Chantell and Michael Sackett, who purchased a vacant lot near Idaho’s Priest Lake. Three years later they broke ground, hoping to build a family home, but soon got entangled in a regulatory dispute. As they began backfilling the property with 1,700 cubic yards of sand and gravel to create a stable grade, the EPA sent them an order halting construction.
“The wetlands on the Sackett property are distinguishable from any possibly covered waters,” Alito wrote, because they are not directly connected to them. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett joined Alito’s opinion.
Alito said that the wetland had to have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.”
Kavanaugh and liberals say majority has ‘rewritten’ environmental law
Justice Brett Kavanaugh was the only conservative who broke ranks.
Writing for himself and liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, Kavanaugh agreed that the Sacketts should prevail in the case at hand because their land should not have been covered by the law, but would have ruled for them on narrower grounds without changing the statutory definition at issue: “waters of the United States.”
The majority had “rewritten the Clean Water Act” and ignored its text as well as “45 years of consistent agency practice,” Kavanaugh wrote.
Kavanaugh insisted that the lands to be regulated did not have to physically touch an adjacent waterway to constitute “waters of the United States,” but that they could include wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.” He noted that eight different administrations since 1977 had recognized such wetlands as being protected.
The statutory text, Kavanaugh wrote, “does not require a continuous surface connection between those wetlands and covered waters.”
“By narrowing the (Clean Water) Act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
CNN Supreme Court analyst Steve Vladeck said the ruling “is yet another example of how justices who are publicly committed to ‘textualism’ can nevertheless divide, sometimes sharply, as to how to parse the text of statutes Congress has written.”
“When you see separate opinions by Justices Kagan and Kavanaugh that both take serious issue with the textual analysis of the majority opinion, that’s a powerful reminder that justices from across the ideological spectrum can construe the same text differently,” said Vladeck, who is also a professor at the University of Texas School of Law.
Damien Schiff, a lawyer for the Sacketts, praised the court’s decision on Thursday, saying it would “return the scope of the Clean Water Act to its original and proper limits.”
“Courts now have a clear measuring stick for fairness and consistency by federal regulators,” Schiff said, calling the ruling “a profound win for property rights and the constitutional separation of powers.”
West Virginia GOP Attorney General Patrick Morrisey, who led a multi-state coalition in a friend-of-the-court brief supporting the Sacketts, also praised the ruling, saying the group is “pleased the Supreme Court ruled in a way that state lands and waters are less subject to the whims of unelected bureaucrats.”
EPA Administrator Michael Regan said he was “disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” adding that the agency will “carefully review” the ruling and “consider next steps.”
And the Natural Resources Defense Council said that the ruling is a “gut punch” that “will make people’s lives worse by enabling the destruction and pollution of millions of acres of wetlands that curb flooding and filter pollution.”
“It means that the federal safeguards against those wetlands being polluted or destroyed are are no longer effective,” said Jon Devine, an attorney with the NRDC.
“In some places, there will be state or local laws, but a lot of places rely on the federal law to provide those safeguards and it’s really hard to overstate how much of an undermining of protections this is,” he added.
The Justice Department declined CNN’s request for comment.
Lower courts split on a definition
The case had environmentalists – who were deeply disappointed last term when the court’s conservative majority curbed the agency’s authority to regulate power plant emissions – on edge. Wetlands – such as swamps, bogs and marshes – are under the EPA’s authority, but the case centered on a test to determine which wetlands are subject to federal regulation.
After the case was argued, the EPA issued long-anticipated guidelines on its own that were more similar to Obama-era guidelines than to the framing that the challengers in the case and their industry guidelines proposed.
Critics of the EPA’s position in the case cast the dispute as a fight for landowners across the country who want to make use of their property without the interference of overzealous federal regulators.
The Clean Water Act allows the EPA to regulate “waters of the United States,” but lower courts were divided on the exact definition of such waters.
At one point during the dispute, the Sacketts were ordered to take actions to restore the site and were told if they did not, they could be faced with penalties of over $40,000 per day.
Their property is bound by roads to the north and the south, but across the street is a man-made ditch that drains about 35 acres of wetlands. The necessary permit would have cost thousands of dollars and taken around two years to obtain. The Sacketts stressed that they had obtained all local building permits, that their site was bordered by developed properties and roads, and that nothing in their deed suggested that their lot contained wetlands. They sued the EPA, claiming that its jurisdiction under the law did not stretch to their property.
The Clean Water Act was passed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It extends to “all navigable waters” and prohibits individuals without permits from discharging pollutants including rocks and sand into those waters. Since the CWA was enacted, however, courts have struggled to identify the exact definition of “waters in the USA.”
Schiff, the Sacketts’ attorney, told the justices in court papers that his clients’ case was “emblematic of all that has gone wrong with the implementation of the Clean Water Act.”
“The Clean Water Act does not regulate wetlands standing alone,” Schiff argued.
A government lawyer told the justices that for decades the EPA has interpreted the law to cover wetlands adjacent to other waters covered by the law.
“Wetlands play an essential role in protecting the chemical, physical, and biological integrity of neighboring waterways, including by filtering pollutants, storing water, and providing flood control,” he said.
A federal appeals court ruled in favor of the EPA.
“The record plainly supports EPA’s conclusion that the wetlands on the Sacketts property are adjacent to a jurisdictional tributary and that, together with the similarly situated Kalispell Bay Fen, they have a significant nexus to Priest Lake, a traditional navigable water,” the appeals court held.
Liberals look forward
Kagan, Sotomayor and Jackson did, in fact, vote in favor of the Sacketts, joining their more conservative colleague, Kavanaugh, in an opinion that would have given the EPA more authority in the area.
But Kagan also wrote a separate opinion, joined only by Sotomayor and Jackson, that launched a warning about the general direction of the conservative majority when it comes to interpreting statutes, potentially foreshadowing future disputes.
“The Court substitutes its own ideas about policymaking for Congress’s”, Kagan wrote, echoing language she has used in the past.
“The Court, rather than Congress, will decide how much is too much,” she said, adding, “that is not how I think our government should work.”
This story has been updated with additional details.