Supreme Court Lands Blow to EPA’s Jurisdiction Over Wetlands

Protestors gather in Washington D.C. as the Supreme Court prepares to weaken the EPA’s ability to protect the nation’s waterways (Victoria Pickering, Flickr).

The ability of the U.S. Environmental Protection Agency (EPA) to regulate water pollution has been severely limited by the Supreme Court in their recent case, Sackett v. EPA. In the majority opinion, Justice Samuel Alito narrowed the definition of “navigable waters,” cutting the EPA’s jurisdiction over wetlands under the Clean Water Act nearly in half.

Background

The case centers around Chantell and Michael Sackett, a couple who had purchased land in Idaho about 300 feet from Priest Lake and began backfilling their property to prepare the lot for construction. However, the EPA had ordered the Sacketts to stop all construction because their property contained wetlands protected by the Clean Water Act. Signed in 1972, this act prohibits the discharge of pollutants, including the gravel used by the Sacketts, into “navigable waters,” defined in the statute as all “waters of the United States.” However, lawyers and bureaucrats alike have disagreed over what precisely this definition covers.

The last case on this issue was Rapanos v. United States in 2006. In his plurality opinion, Justice Anthony Kennedy argued that there must be a “significant nexus” connecting wetlands and a body of water for the former to be covered by the Clean Water Act. Now, the court has overthrown Kennedy’s test and adopted a more restrictive definition of what constitutes “navigable waters.”

Majority Decision

Although all nine justices decided in favor of the Sacketts, they split 5-4 on the interpretation of the Clean Water Act’s definition of “navigable waters.” In the majority opinion, Justice Samuel Alito (joined by Justices Roberts, Thomas, Gorsuch, and Barrett) limited the scope of a provision that extended the Clean Water Act’s jurisdiction over wetlands “adjacent” to waterways.

Alito argued that the Clean Water Act should only extend to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a waterway covered by the act. In essence, he overturned the “significant nexus” test and established a new requirement that protected wetlands be connected to protected waterways above ground.

In a separate concurring opinion, Justice Clarence Thomas wrote that the Supreme Court’s decision in favor of the Sacketts “curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial highways into something resembling ‘a local zoning board.’”

Minority Opinion

In the minority opinion, Justice Brett Kavanaugh (joined by the three liberal Justices, Kagan, Sotomayor, and Jackson) expressed concerns over the implications of the court’s decision. “By narrowing the act’s coverage of wetlands to only adjoining wetlands, 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,” he wrote.

Specifically, Kavanaugh raised concerns about the EPA’s ability to regulate the Mississippi River. Because the Mississippi River features an extensive levee system to prevent flooding, Kavanaugh fears that because these levees create a physical barrier, “the presence of those levees… would seemingly preclude Clean Water Act coverage of adjacent wetlands… even though the adjacent wetlands are often an important part of the flood-control project.”

In a concurring minority opinion, Justice Elena Kagan criticized the majority for appointing itself “the national decision-maker on environmental policy,” arguing that the court does not have the power to “rewrite Congress’s plain instructions because they go further than” the court would like.

What Now?

The impact of the court’s decision will undoubtedly be felt nationwide. On the one hand, regulations on landowners will be significantly decreased. “Courts now have a measuring stick for fairness and consistency by federal regulators,” Damien Schiff, the Sacketts’ lawyer, said of the court’s decision, “today’s ruling is a profound win for property rights and the constitutional separation of powers.”

However, many environmental groups fear the ecological impacts of the decision. Sam Sankar, a lawyer at the environmental-advocacy organization Earthjustice, estimated that up to 90 million acres of wetlands will no longer be under federal protection. Unless states move to strengthen their environmental laws, property owners will have much more freedom to fill in wetlands without federal approval.

After the ruling was made public, EPA administrator Michael Regan said the court’s decision “erodes longstanding water protections,” adding that the agency would continue to work to protect American waterways. “Over the past 50 years, we have made transformational progress,” he said, “a commonsense and science-based definition of ‘waters of the United States’ is essential to building on that progress and fulfilling our responsibility to preserve our nation’s waters, now and for future generations.”