WaPo (“How Supreme Court’s EPA ruling will affect U.S. wetlands, clean water“):
Bogs. Marshes. Swamps. Fens. All are examples of wetlands.
But the type of wetland that gets protection under federal law is a matter of wide dispute, one reset by a sweeping ruling Thursday from the U.S. Supreme Court.
At issue is the reach of the 51-year-old Clean Water Act and how courts should determine what count as “waters of the United States” under that law. Nearly two decades ago, the court ruled that wetlands are protected by the Clean Water Act if they have a “significant nexus” to regulated waters.
The Supreme Court decided that rule no longer applies and said the Environmental Protection Agency’s interpretation of its powers went too far, giving it regulatory power beyond what Congress had authorized. Here’s what you need to know about the ruling.
Writing for five justices of the court, Justice Samuel A. Alito ruled that 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 right, so that they are ‘indistinguishable’ from those waters.” He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.
[…]
All of the justices thought the EPA got it wrong regarding the couple who brought the case — Michael and Chantell Sackett, who want to build a home on their property near one of Idaho’s largest waterways, Priest Lake.
But the justices disagreed on other particulars.
Justice Brett M. Kavanaugh took issue with the majority’s ruling that the EPA lacks authority to regulate wetlands that “are separated from a covered water” by a dike, levee or other barrier.
“The Court concludes that wetlands in that second category are not covered as adjacent wetlands because those wetlands do not have a continuous surface connection to a covered water — in other words, those wetlands are not adjoining the covered water,” he wrote. “I disagree because the statutory text (‘adjacent’) does not require a continuous surface connection between those wetlands and covered waters.”
[…]
Some environmentalists and legal experts say it could limit the EPA from acting on many modern problems, especially climate change, or doing anything that might expand the authority of a federal agency beyond previous limits. They point to language from Alito requiring Congress to “enact exceedingly clear language” on rules that may affect private property. They further point to trends in the court’s rulings and the cases it is agreeing to take that suggest the conservative-majority court is skeptical of the executive branch’s regulatory power.
“No environmental rule is safe in the wake of this decision,” said Patrick Parenteau, an environmental law expert at Vermont Law School.
But others say the ruling is not that expansive. There are major differences between the Clean Water Act and other bedrock environmental laws in the parameters they set around federal authority, said Kevin Minoli, a partner at the Alston & Bird law firm and former lawyer in the EPA’s Office of General Counsel under Republican and Democratic administrations. That probably limits the influence Thursday’s decision may have on attempts to regulation air pollution, greenhouse gas emissions and chemicals.
“I do not see the Supreme Court’s decision as an imminent threat to environmental regulations adopted in other contexts,” Minoli said.
In a companion op-ed (“The Supreme Court just gutted the Clean Water Act. It could be devastating.“) Harvard Law professor Richard J. Lazarus is scathing:
Justice Antonin Scalia died more than seven years ago, but the Supreme Court’s decision in Sackett v. Environmental Protection Agency on Thursday shows that this is the “Scalia Court” far more so than when he was alive.
The ruling arrives almost a year after the court’s conservative majority made the worst fears of environmentalists a reality in West Virginia v. Environmental Protection Agency, which severely curtailed the ability of the nation’s environmental laws to protect public health and welfare. The Sackett ruling doubled down on that disregard for pollution and public health, and the effect will likely be devastating.
The precise legal issue decided in Sackettconcerns the geographic scope of the 1972 Clean Water Act. Congress intended the law to end the practice of the nation’s waterways being used as the unregulated dumping ground for industrial pollution. The effect was transformational: For the first time in the nation’s history, any discharge of pollutants into the nation’s waterways absent a permit was unlawful, making it possible to safely fish and swim waters throughout the country.
Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into “navigable waters,” but Congress also expressly defined that to include all “waters of the United States.” Since the mid-1970s, the courts have uniformly agreed that Congress intended with that expansive definition to extend the law’s protections far beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into the nation’s major rivers and lakes.
In a unanimous opinion for the court almost 40 years ago, Justice Byron White explained why. While acknowledging that “on a purely linguistic level, it may appear unreasonable to classify ‘lands’ wet or otherwise as ‘waters,’” the court said “such a simplistic response … does justice neither to the problem faced by the [government] nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”
Justice Samuel A. Alito Jr.’s opinion in Sackett, however,embraces the very “simplistic response” that the court rightly criticized in 1985. Relying on a dictionary definition of “waters” and ignoring the Clean Water Act’s purpose, the court’s conservative majority has adopted a radically truncated view of the reach of the law’s restriction on water pollution. Under the court’s new view, pollution requires a permit only if it is discharged into waters that are “relatively permanent, standing or continuously flowing bodies of water, ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams … oceans, rivers, and lakes.’” And “wetlands” are covered only if they are “indistinguishably part” of those narrowly defined covered waters.
This is exactly what Scalia wanted to accomplish in 2006 when the Clean Water Act was last before the court. He managed to cobble together three other votes to gut the law but fell one justice short. Now, with six conservative justices — three of whom are largely modeled after Scalia — Alito was able to accomplish what Scalia never could by securing the necessary fifth vote.
The impact of the majority ruling is potentially enormous. It could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law’s direct protection. Basic protections necessary to ensure clean, healthy water for human consumption and enjoyment will be lost. As highlighted by Justice Elena Kagan’s separate opinion, the court’s opinion “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
Nor will the nation’s economy be spared. Myriad businesses rely on clean water for their industrial processes. The fishing, real estate and tourism industries are all highly dependent on the protections that the Clean Water Act has provided over the past half-century.
None of this was compelled by law. Even Justice Brett M. Kavanaugh rejected Alito’s majority view, announcing that he “would stick to the text.” Congress spoke clearly in the Clean Water Act about its ambitions and backed that intent up with deliberately sweeping language to provide the EPA with the discretionary authority it needed to realize those goals. Our nation’s waters are far cleaner as a result. Yet, for the second time in less than a year, an activist Supreme Court has deployed the false label of “separation of powers” to deny the other two branches the legal tools they require to safeguard the public.
Scalia might have been pleased. Our nation should not be.
I am far from an expert on environmental policy or what Congress intended by the phrase “waters of the United States.” One could, I suppose, argue that the Supreme Court should view statutes narrowly and then let Congress remedy the ruling by passing new statutes. The obvious counter is that, for the last two decades or so, Congress has been virtually non-functional. While I could preach that either way, the fact that Congress has let an incredibly expansive—and unanimous!—SCOTUS interpretation stand since 1985 would seem like a pretty strong indicator that it was the correct interpretation of legislative intent. (Especially since it came during the Reagan administration with a Republican-majority Senate and a much less sorted partisan atmosphere and we’ve had multiple periods with a Republican President and Republican majorities in both Houses since.)
Beyond that, for a Court ostensibly fighting to preserve its legitimacy and constantly railing about the lack of public deference for its rulings, they seem to be going out of their way to thumb their nose at longstanding precedent—the lifeblood of a Common Law system. While I’m agnostic on United States v. Riverside Bayview and think Roe v. Wade was incorrectly decided, they were rightly considered settled law after decades on the books.
This particular ruling seems to be yet another step in trying to dismantle the so-called Administrative State. I’m actually quite sympathetic to the notion that Congress delegating so much quasi-legislative power to Executive branch bureaucracies violates the letter and spirit of the Constitution. But, even while the Framers were alive, the Supreme Court issued common sense rulings that balanced the 1787 text with the practicalities of governance. There’s simply no way to run a 21st Century continental superpower without bureaucratic experts having significant regulatory flexibility.
Again, I suppose, the rote answer is “Amend the Constitution using the provisions of Article V.” Realistically, though, that’s essentially impossible.
