The Supreme Court delivered a major blow to the Environmental Protection Agency on Thursday, limiting the number of areas that can be regulated as protected wetlands.
By a 5-4 vote, the high court said wetlands only come under the scope of the federal Clean Water Act if they have a “continuous surface connection” to larger bodies of water.
The opinion by Justice Samuel Alito overturned a 2006 decision written by then-Justice Anthony Kennedy, who found that protected wetlands had to have a “significant nexus” to larger bodies of water in order to require permits for discharging materials.
Critics of the EPA had insisted that Kennedy’s standard was vague and unworkable.
The case stemmed from a lawsuit brought by an Idaho couple, Michael and Chantell Sackett, against federal officials, who had required them to get a permit before building on a soggy portion of their property near Priest Lake, just south of the Canadian border.
The Supreme Court has made it harder for the federal government to police water pollution, ruling Thursday to strip protections from wetlands that are isolated from larger bodies of water. APAlthough all nine justices agreed the wetlands on the couple’s property were not protected by the Clean Water Act, conservative Brett Kavanaugh joined the panel’s three liberal justices — Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — in arguing that the decision went too far in rewriting the nation’s primary water pollution-governing law.
Alito was joined in his opinion by Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett and Chief Justice John Roberts.
“The EPA contends that the only thing preventing it from interpreting ‘waters of the United States’ to ‘conceivably cover literally every body of water in the country’ is the [Kennedy] significant-nexus test,” Alito wrote. “But the boundary between a ‘significant’ and an insignificant nexus is far from clear. And to add to the uncertainty, the test introduces another vague concept — ‘similarly situated’ waters — and then assesses the aggregate effect of that group based on a variety of open-ended factors that evolve as scientific understandings change. This freewheeling inquiry provides little notice to landowners of their obligations under the CWA. Facing severe criminal sanctions for even negligent violations, property owners are left to feel their way on a case-by-case basis.”
Michael and Chantell Sackett of Priest Lake, Idaho, took the case all the way to Washington, DC, after they were required to get permits to build on their property. AP“The EPA also advances various policy arguments about the ecological consequences of a narrower definition of adjacent,” Alito added. “But the CWA does not define the EPA’s jurisdiction based on ecological importance, and we cannot redraw the Act’s allocation of authority.”
In his partial concurrence, Kavanaugh wrote the “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,” adding that efforts to control flooding on the Mississippi River and protect the Chesapeake Bay could be threatened by the decision.
Kagan compared the ruling to last year’s decision that limited the regulation of greenhouse gas emissions under the Clean Air Act, arguing the court had overridden Congress by appointing “itself as the national decision-maker on environmental policy.”
Damien Schiff, who represented the Sacketts at the Supreme Court, said the decision appropriately narrowed the reach of the law. “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 issued by the property rights-focused Pacific Legal Foundation.
Manish Bapna, chief executive of the Natural Resources Defense Counsel, called on Congress to amend the Clean Water Act to restore the protections.
“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price,” Bapna said in a statement.
The ruling was expected to influence ongoing litigation over wetlands regulations that the Biden administration affected last year, which has been blocked in 26 states by two federal judges.
With Post wires
