The Supreme Court on Thursday restricted the Environmental Protection Agency’s power to control water pollution, ruling that the Clean Water Act does not allow the agency to regulate water pollution. discharges in certain wetlands near bodies of water.
The court held that the law only covered wetlands “with a continuous surface connection” to those waters, Judge Samuel A. Alito Jr. wrote for five justices.
The decision was nominally unanimous, with all the judges agreeing that the owners who brought the case should not have been subject to agency oversight. But there was deep disagreement over the majority’s reasoning.
Judge Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would hurt the EPA’s ability to fight pollution.
“By reducing wetland coverage by law to adjacent wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant impacts on water quality and flood control throughout the United States.”
The decision followed a ruling last year that limited the EPA’s power to address climate change under the Clean Air Act.
“There,” Judge Elena Kagan wrote in a concurring second opinion, “the non-textualism of the majority prevented the EPA from addressing climate change by limiting emissions from power plants in the most effective way. Here, this method prevents the EPA from keeping our nation’s waters clean by regulating adjacent wetlands. The vice in both cases is the same: the court’s appointment of itself as the national environmental policy maker.
The case, Sackett v. Environmental Protection Agency, No. 21-454, involved an Idaho couple, Michael and Chantell Sackett, who were looking to build a home on what an appeals court called “soggy residential land.” near Priest Lake, in the begging state.
After the couple began preparing the property for construction in 2007 by adding gravel and fill, the agency ordered them to shut down and restore the property to its original state, threatening them with substantial fines . The couple sued the agency instead, and a dispute over whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the judges decided that the lawsuit could continue.
In a concurring opinion at the time, Judge Samuel A. Alito Jr. said the law gave the agency too much power.
“The scope of the Clean Water Act is notoriously unclear,” he wrote. “Any land that is wet at least part of the year is at risk of being classified by EPA employees as a legally covered wetland, and according to the federal government, if homeowners start building a home on land regardless of whether the agency thinks it has the required humidity, homeowners are at the mercy of the agency.
The Clean Water Act regulates discharges into what the law calls “United States waters”. The question for the judges was how to determine which wetlands qualify as such waters.
Lower courts ruled that the Sacketts’ property was a wetland the agency could regulate, finding it qualified under a 2006 Supreme Court decision, Rapanos v. United States, which included concurrent tests to decide this question.
Judge Antonin Scalia, who died in 2016, wrote for four judges in the Rapanos decision that only wetlands having “a continuous surface connection” with “relatively permanent, stagnant or running bodies of water” are eligible. That standard seemed to favor the Sacketts.
Justice Anthony M. Kennedy, who retired in 2018, said in a concurring opinion that the law only requires a “meaningful connection” between the wetlands at issue and the water bodies.
A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled that Judge Kennedy’s opinion prevailed. The agency, Judge Michelle T. Friedland, wrote for the panel, “reasonably determined that the Sacketts’ property contains wetlands that share a significant connection with Priest Lake.”