The United States Supreme Court has curtailed the Environmental Protection Agency (EPA)’s authority to protect wetlands from pollution, a ruling that some experts and justices say goes too far by positioning the court as “the national decision-maker on environmental policy.”
On May 25, the court ruled that only wetlands with a “continuous surface connection” to larger streams, lakes, and rivers fall under federal protection. This is the second major legal blow to the federal government’s powers for environmental protection, after last year’s SCOTUS decision that the Clean Air Act does not grant the EPA broad authority to regulate greenhouse gas emissions from power plants that contribute to global warming.
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The latest result will be devastating for environmental regulations for tens of thousands of wetlands that were previously considered protected, including the Florida Everglades and the Mississippi River basin, the Washington Post reports. It is a win for farmers, homebuilders, and other developers who will now “probably find it easier to get permits to build.” And it will undermine the Biden administration’s efforts since 2021 to resolve uncertainties about EPA authority over waterways.
The case at issue this time, Sackett vs EPA, was launched by an Idaho couple [pdf] who were told they needed a permit to fill in a portion of their property that the government considered wetlands, and which were regulated as “waters of the United States” under the Clean Water Act of 1972. Their lawyers said the government had encroached on their property rights and thelegislation did not apply to their land, an argument with which all nine judges concurred.
“The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event,” reported the New York Times. “But there was sharp disagreement about a new test the majority established to determine which wetlands are covered by the law.”
The majority ruling, written by Justice Samuel Alito, said the current EPA definition for “waters of the U.S.” gave too much power to the federal government, and that the Clean Water Act’s consequences for violators were too harsh for such an expansive interpretation. To set a new definition, the majority held that “waters” refers only to “geographical features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.” This new “surface connection” designation narrows the previous definition by excluding wetlands that are nearby but not adjoined to the navigable waters, even though pollutants and waters may still move between them.
Justice Brett M. Kavanaugh and three liberal justices said the decision would harm the federal government’s ability to address pollution and flooding.
“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “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.”
The ruling could have been more limited, said Vermont Law School professor Patrick Parenteau.
“They could have rendered a narrow decision based on the facts of the Sackett case and said, in this case, where a wetland is this small and is not connected to the lake, it should not be subject to federal control.”
Instead, the majority “fashioned a policy for the entire United States based on this one particular set of facts of this property in northern Idaho.”
The Supreme Court used the opportunity to limit the EPA’s authority, handing back some power to state governments. Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, issued a separate opinion that agreed with the entire ruling, emphasizing that land and water use “lies at the core of traditional state authority” and federal authority over navigable waters is limited.
In a separate opinion, Justice Elena Kagan referred to the court’s previous decision to curtail the EPA’s authority over power plant emissions and criticized the majority’s interpretation of the law.
“There,” she wrote, “the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
“The vice in both instances is the same,” Kagan added. “The court’s appointment of itself as the national decision-maker on environmental policy.”
The Times said experts consider the ruling “another example of the court’s skepticism of the authority of administrative agencies.”
“The current court is clearly unwilling to defer to an agency about the scope of that agency’s own power,” said Jonathan H. Adler, a law professor at Case Western Reserve University.
