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Supreme Court wades into wetlands to open new term

On its first day back from summer break, the Supreme Court is again putting the authority of the Environmental Protection Agency under scrutiny.

WASHINGTON (CN) — Justice Ketanji Brown Jackson did not waste time during her first day on the bench as the Supreme Court began its new term Monday with a challenge against the government’s authority to regulate wetlands. 

“Why is it that your concept of this doesn’t in any way relate to Congress’ objective,” Jackson asked Damien Schiff, a Pacific Legal Foundation attorney whose clients purchased wetland-adjacent land in Idaho. Having started construction without a permit under the Clean Water Act, Chantell and Michael Sackett want a court to absolve them of fines up to $40,000 a day by finding that their property does not meet the standard for water that the Environmental Protection Agency can regulate.

The Sacketts’ property is not directly connected to Priest Lake, a popular tourist destination, but rather is connected by a “shallow subsurface flow.” The plot used to be part of a larger complex that drained directly into the lake. This gets to the heart of the issue before the justices this time around: if the Clean Water Act applies to subsurface flow or only continuous surface connection to navigable water. 

It was a gloomy Monday morning as the justices took up the question of what can be defined as waters of the United States under the Clean Water Act, a nearly 16-year dispute, for the second time Monday.

The rather drawn-out legal dispute began with a fight over whether the Sacketts could even bring a challenge to the EPA’s order. While the Supreme Court breathed new life into the case over a decade ago, the Sacketts’ challenge still came up short in the lower courts on remand. In January, the justices agreed to take up the case once again. 

Regulations from the Army Corps of Engineers that defined waters of the United States to include wetlands adjacent to navigable waters led most members of the Supreme Court on Monday to focus on the definition of adjacent. Schiff argued that a road separated Priest Lake and the property bought by his clients, the Sacketts, making them nonadjacent. 

Chief Justices Roberts said he would consider a train station adjacent to train tracks even if they do not touch. Justice Elena Kagan offered a similar example with an apartment building in New York City. 

“Is something adjacent enough,” Kagan asked. 

Justice Gorsuch pushed the government on its definition of adjacency, asking how landowners were supposed to determine something the EPA couldn’t define. 

“I want to understand how much adjacency is adjacent,” the Trump appointee said. 

Schiff argued that the Sacketts' property should not be considered to contain navigable waters because it does not a contain surface connection. He urged the justices to follow the standard created by the late Justice Antonin Scalia in Rapanos v. United States, which limits wetlands under EPA jurisdiction to those with a continuous surface connection. 

The government argued the justices should continue using a different test laid out in the same case by another former justice, Anthony Kennedy. Kennedy’s test says the Clean Water Act protects wetlands with a “significant nexus” to traditional navigable waters. 

Which test the court adopts could have a major impact on what waters the EPA can regulate. 

“According to a recent Army Corps survey, approximately 70% of the water bodies currently protected by the Clean Water Act may no longer be protected if the Court adopts the more restrictive interpretation articulated by the late Justice Scalia,” said Duke McCall, a partner at Morgan Lewis focused on environmental law, speaking about the case in an email interview. 

Not all of the justices appeared happy, however, to adhere to either test. Signaling their interest in adopting something new, Gorsuch pushed the government to define the geographic proximity of wetlands to navigable waters, while Roberts asked about a biological connection. 

Monday marked the first time the high court allowed the public back into the courtroom for oral arguments since closing down over two years ago for the Covid-19 pandemic. Spectators arrived at the court hours ahead of the arguments to get a chance to enter the building. Despite the limited space and tight security protocols, the courtroom was packed with few masks in sight. 

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