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EPA authority to regulate wetlands clobbered by Supreme Court

The decision settles a 17-year fight over how to define water under the Clean Water Act. 

WASHINGTON (CN) — Limiting the government’s authority to regulate wetlands under the Clean Water Act, the Supreme Court ended a nearly two-decade-old dispute Thursday. 

President Joe Biden called the rollback a disappointment that would jeopardize clean water sources for millions of Americans. Biden said the ruling not only upended precedent but defied science.

"Today’s decision upends the legal framework that has protected America’s waters for decades," Biden said in a statement. "It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities."

The ruling from the court was unanimous, with the justices affirming summary judgment in the suit by Chantell and Michael Sackett against the Environmental Protection Agency. 

“For more than a half century, the agencies responsible for enforcing the Act have wrestled with the problem and adopted varying interpretations,” Justice Samuel Alito wrote for the court. 

He continued: “When we addressed the question 17 years ago, we were unable to agree on an opinion of the Court. Today we return to the problem and attempt to identify with greater clarity what the Act means by ‘waters of the United States.’” 

In 2004, the Sacketts bought property that is connected indirectly — by way of a “shallow subsurface flow” — to the popular Idaho tourist destination Priest Lake. Under the Clean Water Act, the EPA is allowed to regulate “waters of the United States.” And while the lake itself clearly falls under EPA authority, less clear was whether the Clean Water Act applies to subsurface flow or only continuous surface connection to navigable water. 

The Army Corps of Engineers defined waters of the United States as navigable waters — including wetlands adjacent to these waters — in its regulations. The court now offers a new definition.

“In sum, we hold 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,” Alito wrote. “This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.” 

Regulatory confusion over the Sacketts' property drew high court intervention over a decade before the latest dispute. Although the EPA instructed the Sacketts to apply for a permit under the Clean Water Act just to build on their land, the couple had already begun construction on their lot, filling an area with sediment, before receiving the EPA order. This left the Sacketts facing fines of up to $40,000 for every day the property was not returned to its original state. 

In 2012, the high court found unanimously that the Sacketts could challenge that EPA compliance order under the Administrative Procedures Act. On remand, however, the lower courts ruled against the Sacketts again. The couple again appealed, with the justices resolving last year to settle the case for good. 

A road bisects a wetland on June 20, 2019, near Kulm, N.D. (AP Photo/Charlie Riedel, File)

Alito wrote Thursday that the EPA's interpretation leaves all waters and wetlands open to regulation. He said the agency’s “unchecked definition” of waters of the United States leaves landowners at risk of criminal prosecution. 

“This puts many property owners in a precarious position because it is ‘often difficult to determine whether a particular piece of property contains waters of the United States,’” Alito wrote.  

The justices agreed that the Sacketts should win their fight against the EPA’s regulation, but they were divided on how. 

Alito’s opinion was joined by Justices Clarence Thomas, John Roberts, Neil Gorsuch, and Amy Coney Barrett. It says the Clean Water Act should only extend to wetlands that are indistinguishable from waters of the United States. This means the water connected to the wetland must first be found to be a water of the United States. Once that is established, the wetland must have a continuous surface connection with that water. 

Justice Brett Kavanaugh — joined by Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — wrote a separate opinion, agreeing with the court’s judgment but not Alito’s reasoning. Kavanaugh said he disagrees with the new test for categorizing wetlands under the Clean Water Act. 

“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,” the Trump appointee wrote. 

Instead of the Clean Water Act covering adjacent wetlands, Kavanaugh says the new test looks only at adjoining wetlands. 

“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,” Kavanaugh wrote. 

Damien Schiff, an attorney with the Pacific Legal Foundation representing the Sacketts, called the ruling was a win for property rights.

“The Court’s ruling returns the scope of the Clean Water Act to its original and proper limits,” Schiff said in a statement. “Courts now have a clear measuring stick for fairness and consistency by federal regulators."

Kagan — joined by her liberal colleagues — characterized the ruling as putting a “thumb on the scale for property owners” in a law intended to regulate those same property owners. Kagan says Thursday’s ruling is a “reflexive response” to the congressional effort to regulate the environment. 

“It is an effort to cabin the anti-pollution actions Congress thought appropriate,” Kagan wrote. 

Citing the court’s ruling last term in West Virginia v. EPA, Kagan said the court has created a pattern of using judicial canons as “get-out-of-text-free cards.” 

“The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy,” Kagan wrote. 

The Obama appointee cited her dissent in West Virginia, arguing the court “substitutes its own ideas about policymaking for Congress’s.” 

“Because that is not how I think our Government should work — more, because it is not how the Constitution thinks our Government should work — I respectfully concur in the judgment only,” Kagan wrote. 

Advocacy groups were quick to praise Kagan’s characterization of the ruling.

“She makes plain that the majority has contorted itself to reach an absurd decision — one that contravenes Congress’s intention, exceeds the Court’s constitutional authority, and endangers the planet,” Alliance for Justice President Rakim H.D. Brooks said in a statement. 

Brooks said the ruling distorts vocabulary to do the bidding of fossil fuel companies. 

“This Supreme Court opinion is just another example of the conservative justices ignoring science, common sense, and the health of our nation,” Brooks wrote. “We know that climate change is only going to make it harder to protect access to clean water, making this a huge setback for the entire planet. This is not a ruling on behalf of reason or the rule of law, but one that helps the rich get richer at the expense of everybody else.” 

Follow @KelseyReichmann
Categories / Appeals, Environment, Government

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