The Supreme Court voted to rein in the power of the U.S. Environmental Protection Agency (EPA) to regulate wetlands in a complex decision issued on May 25, the second time in a year that the court has curbed federal environmental authority.
All three liberal justices and one conservative justice expressed their opposition to the court’s decision to adopt a new definition for wetlands.
The nation’s high court ruled in favor of an Idaho couple who have been battling federal officials for years over the right to develop their own property.
The ruling involved the controversial “waters of the United States” rule that critics say has led to excessive and, at times, overzealous regulation of private lands by the EPA.
The couple’s lawyer, Damien Schiff of the Pacific Legal Foundation (PLF), said the ruling “returns 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. Today’s ruling is a profound win for property rights and the constitutional separation of powers,” Schiff said in a statement.
EPA Administrator Michael Regan promptly denounced the ruling, saying that it “erodes longstanding clean water protections.”
“As a public health agency, EPA is committed to ensuring that all people, regardless of race, the money in their pocket, or community they live in, have access to clean, safe water. We will never waver from that responsibility,” he said in a statement.
The case, Sackett v. EPA (court file 21-454), was argued on Oct. 3, 2022.
Agencies Ordered Work to Stop
Chantell and Mike Sackett had started building a new home in Priest Lake, Idaho, when the EPA and Army Corps of Engineers suddenly ordered them to stop all work. The government agencies stated that the couple needed a federal permit and threatened them with more than $30,000 in daily fines.
The EPA had determined years before that their parcel of land contained wetlands. The Sacketts say their lot lacks a surface water connection to any stream, creek, lake, or other water body and that it shouldn’t be subject to federal regulation and permitting.
Even though water isn’t usually visible on their land, the government claims that, based on aerial photography, the lot is home to a fen wetland.
Fens are “peat-forming wetlands that rely on groundwater input and require thousands of years to develop and cannot easily be restored once destroyed,” according to a USDA Forest Service report.
They are “hotspots of biodiversity” and “figure prominently in nearly all scenarios of CO2-induced global change because they are a major sink for atmospheric carbon.”
The Sacketts had asked the Supreme Court to revisit its 2006 ruling in Rapanos v. United States, which was a fractured plurality decision that created uncertainty about the applicable legal standard.
Led by the late Justice Antonin Scalia, four of the nine justices found that the Clean Water Act (CWA) regulates a wetland only if it has a continuous surface connection to another waterway.
Then-Justice Anthony Kennedy devised his own legal test, finding that the law covers wetlands that have a “significant nexus” to a larger body of water. The Biden administration argued for the nexus standard.
In the Supreme Court’s new opinion, all nine justices agreed that the Sacketts’ property didn’t fall under the CWA, but only five agreed on a new test to be used to determine when the statute applies to wetlands.
The majority rejected the nexus standard and endorsed the Rapanos standard that previously failed to garner majority support on the court.
The court’s majority opinion was written by Justice Samuel Alito. That opinion was joined by four other conservative justices—Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, and John Roberts, the chief justice.
In the opinion, Alito described the CWA, the principal federal law regulating water pollution in the United States, as “a great success.”
“Before its enactment in 1972, many of the nation’s rivers, lakes, and streams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country,” he wrote.
“There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start.
“The Act applies to ‘the waters of the United States,’ but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”
‘Bumpy and Costly’ Voyage
The Sacketts, Alito noted, “have spent well over a decade navigating the CWA, and their voyage has been bumpy and costly.”
The EPA found that the so-called wetlands on their land were “adjacent to” an “unnamed tributary” on the other side of a 30-foot road. The tributary feeds into Priest Lake, a body of water that the EPA has determined is traditionally navigable.
To establish “a significant nexus,” the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the agency regarded as “similarly situated.”
“According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States,’” Alito wrote.
A federal district court dismissed the Sacketts’ lawsuit under the Administrative Procedure Act that claimed the EPA lacked jurisdiction because any wetlands on their land were not “waters of the United States,” he wrote.
The U.S. Court of Appeals for the 9th Circuit affirmed finding that the CWA “covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.”
But the Supreme Court determined that the EPA overreached, finding that the CWA “extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable’ from those waters.”
“The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” Alito wrote.
The Supreme Court remanded the case to the 9th Circuit “for further proceedings consistent with this opinion.”
But the three liberal justices, along with conservative Justice Brett Kavanaugh, accused the majority of rewriting the Clean Water Act.
“Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’ enactment of an ambitious scheme of environmental regulation,” Justice Elena Kagan wrote in a dissenting opinion.
“It is an effort to cabin the anti-pollution actions Congress thought appropriate.”
Kagan was referencing the court’s 6–3 ruling in June 2022 in West Virginia v. EPA.
In that case, the court held that the Clean Air Act doesn’t give the EPA widespread power to regulate carbon dioxide emissions that a popular theory says contribute to global warming.
In the West Virginia ruling, “the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way.”
In the current ruling, the same reasoning “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
In both, the court appointed “itself as the national decision-maker on environmental policy,” Kagan wrote.
Her opinion was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Kavanaugh wrote in an opinion that he agreed with the majority that the nexus test shouldn’t be adopted but said he disagreed with the test the majority actually adopted.
“In my view, the Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” he wrote.
The Court’s “new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States.”
Kavanaugh specifically expressed concern that the new test could weaken CWA-based protection of the Mississippi River and the Chesapeake Bay.
Kagan, Sotomayor, and Jackson joined Kavanaugh’s statement.
The new ruling may have an effect on ongoing litigation over wetlands regulations that the Biden administration unveiled late last year.
Two federal judges have reportedly issued injunctions temporarily preventing the regulations from taking effect in 26 states.
This article by Matthew Vadum appeared May 25, 2023, in The Epoch Times.