The Only Good Thing to Come out of Sackett v. EPA is the Epic Shade Thrown by the Dissenting Justices
On May 25th, the Supreme Court decided on Sackett v EPA, significantly narrowing the extent of wetlands protected in the United States. The case centered on the definition of a wetland for regulatory purposes under the Clean Water Act. Perhaps the only good thing to come out of the 80-pages of the ruling is the epic shade thrown by the dissenting Justices (see below). But I digress.
None of the Justices wanted to keep the current ‘significant nexus’ test for determining whether a wetland is part of ‘Waters of the United States,' (WOTUS), which says a wetland is protected under the CWA if it has a physical, biological, or chemical nexus to WOTUS (a relatively permanent body of water connected to a traditional navigable water). This is how the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers Corps of Engineers have interpreted the CWA for most of the last 45+ years (minus the 13-month blip noted below), but the Supreme Court just crumpled that up and tossed it in the garbage. 'Majority rules’ and the plurality opinion penned by Justice Alito narrows the scope of wetlands protected under the Clean Water Act (tiny ray of hope: streams weren’t mentioned and just might continue with the current level of protection - more on this below).
Based on the majority decision, the test now centers on whether a wetland is adjacent, which they interpreted to mean wetlands with a continuous surface connection to WOTUS and so close they are ‘indistinguishable’ from WOTUS. Included in those wetlands losing protection are wetlands separated from WOTUS by a man-made barrier like a levee or dam, or a natural barrier like a berm or a dune would lose protection. Which makes the majority’s definition a less-protective variation of the Trump-era Navigable Waters Protection Rule definition of WOTUS that was in place for 13 months. This is a big deal. We haven’t yet seen research to point to what percentage of wetlands would lose protection but it will be significant. As an example, when NWPR was in place, it reduced protections to ephemeral and intermittent streams, which led to a huge surge in projects impacting these resources. There were the same amount of permitted impacts to these resources in 13 months as there were in the remainder of the 7-year dataset we analyzed.
Newsflash - the Sackett v. EPA definition of WOTUS is essentially in place, with the US Army Corps of Engineers noting in an announcement “...In light of this decision, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps.”
There is a bit of additional nuance to the majority’s definition - first regarding temporary events: “We acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” The second nuance is a small footnote indicating that you can’t ‘game the system’ and add a berm or dam and viola - No WOTUS! In footnote (p.16): “Although a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, a landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA.”
This new definition of WOTUS does not draw the ‘bright line’ definition that the Justices were attempting. If we were hiring ‘expensive’ consultants before to determine ‘significant nexus,’ we will now be hiring them to determine ‘continuous surface connection’ (and what will that entail - hydrology studies?), and whether dry-ish wetlands are occurring because of a ‘dry spell’ (and what is the definition of a dry spell?).
The majority decision was written by Justice Alito and supported by Justices Roberts, Thomas, Gorsuch, and Barrett. The content of their argument boils down to ‘the Clean Water Act is out of hand’ - it’s too vague, too expensive, too far-reaching geographically, too strict a consequence for being on the wrong side of the law (e.g., criminal penalties), and too much power with the feds rather than with states. “...the Clean Water Act can sweep broadly enough to criminalize mundane activities like moving dirt.” Thus, the majority interpreted what Congress meant by ‘Waters of the United States’ and the reference to adjacent wetlands in the Clean Water Act. Most of the argument is related to considering the normal parlance of the word ‘waters’ and ‘adjacent’ and guessing whether Congress really meant to include ‘adjacent wetlands’ in the Clean Water Act because it is mentioned only once in the 1977 amendment to the CWA and while the term ‘waters’ is used frequently in the Act. The majority opinion only spends about three sentences on science, and spends that time dismissing the ecological consequences of a narrower definition of ‘adjacent,’ asserting that “the CWA does not define the EPA’s jurisdiction based on ecological importance.” Justice Thomas agreed with the above and then took it even further in his 20-page rambling analysis focused on the history of regulating ‘navigable’ waters that went all the way back to British Colonial law - yes, back when people believed vapors called miasmata came from swamps and caused diseases.
The tiny ray of hope in this ruling is that it focuses on wetlands, and does not mention streams. And if you read the majority’s opinion, you’d see that they are SUPER picky about the words they use - if they are ruling on wetlands, hopefully that’s all they are ruling on. Non-navigable streams make up over half of all streams nationally, and over 80% of streams in the arid West, and may retain protection under the Clean Water Act.
Justices Kagan, Sotomayor, Jackson, and Kavanaugh had some choice words about the majority decision, mostly about the majority decision messing around with what ‘adjacent’ wetlands were and what Congress intended when they included that word in the Clean Water Act. The majority was hypocritical in being very particular sticking to what the Act said (instead of rewriting law) and using the common parlance of words, but then interpreting ‘adjacent’ to really just mean adjoining only (rather than being nearby, as Kagan and Kavanaugh point out). See this and other arguments below.
Dissenting* Justices Throw Shade
KAGAN: “...make no mistake: Congress wrote the statute it meant to. [OOH, BURN!] The Clean Water Act was a landmark piece of environmental legislation, designed to address a problem of ‘crisis proportions’... How bad was water pollution in 1972 when the Act was passed? Just a few years earlier, Ohio’s Cuyahoga River had ‘burst into flames, fueled by oil and other industrial wastes.’”
KAGAN: “Congress chose just the word needed to meet the Act’s objective. A wetland is protected when it is ‘adjacent’ to a covered water - not merely when it is ‘adjoining’ or ‘contiguous’ or ‘touching,’ or (in the majority’s favorite made-up locution) [OUCH!] has a ‘continuous surface connection.’”
In response to Justice Alito’s mathematic / Venn Diagram / voodoo explanation of what is and is not covered in WOTUS: “The provision begins with a broad category, “the waters of the United States,” which we may call category A. The provision provides that States may permit discharges into these waters, but it then qualifies that States cannot permit discharges into a subcategory of A: traditional navigable waters (category B). Finally, it states that a third category (category C), consisting of wetlands “adjacent” to traditional navigable waters, is “includ[ed]” within B. Thus, States may permit discharges into A minus B,which includes C.”
KAGAN: “The majority’s first pass through the statue is, as Justice Kavanaugh says, ‘unorthodox.’ ‘A minus B, which includes C’? The majority could use every letter of the alphabet, and graduate to quadratic equations, and still not solve its essential problem.” [OH SNAP!]
KAVANAUGH: “...eight consecutive Presidential administrations have recognized that the Act covers adjacent wetlands and that adjacent wetlands means more than adjoining wetlands. The Court’s analysis today therefore seems stuck in a bit of a time warp.” [PROCEEDS TO SLAM DOWN EVIDENCE FROM EVERY ADMINISTRATION’S INTERPRETATION OF WOTUS]
KAGAN: With regards to the Supreme Court recently striking down EPA’s ability to regulate carbon dioxide emissions and this decision, “The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.” [SHAKES FIST]
*OK, technically, the justices aren’t dissenting because they all agreed (“concurred”) that for the particular case, the Sacketts should be off the hook.
Sackett v. EPA was a Crushing Blow to Wetlands and May Even Portend Additional Weakening of Environmental Law
I try not to be a doom and gloom person, but this court ruling is pretty darn bad. On the face of it, we are losing protections for wetlands. But digging beneath the surface, we see the seeds for undermining environmental protections in the future. The majority opinion alludes to a “...judicially manufactured clear statement rule.” As Justice Kagan describes:
KAGAN: “When Congress (so says the majority) exercises power “over private property” - particularly, over “land and water use” - it must adopt “exceedingly clear language.” There is, in other words, a thumb on the scale for property owners - no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”
The second ‘bad seed’ is Justice Thomas arguing that really all water protection should be based in the Commerce Clause. So if you’re not throwing 100 refrigerators into a river and blocking transportation of goods for sale, I guess you’re OK in Justice Thomas’ world. Thomas scarily puts all environmental law in his sights (see italicized).
THOMAS: “The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes… Perhaps nowhere is this deviation more evident than in federal environmental law, much of which is uniquely dependent upon an expansive interpretation of the Commerce Clause… The Court’s opinion today curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial water highways into something resembling “a local zoning board.” But, wetlands are just the beginning of the problems raised by the agencies’ assertion of jurisdiction in this case. Despite our clear guidance in SWANCC that the CWA extends only to the limits of Congress’ traditional jurisdiction over navigable waters, the EPA and the Corps have continued to treat the statute as if it were based on New Deal era conceptions of Congress’ commerce power.”
Is there reason for optimism? Let me know in the comments.
EPIC will continue to follow how the Sackett v. EPA case plays out, and implications for impacts to wetlands, and the restoration economy.
The Restoration Economy Center, housed in the national nonprofit Environmental Policy Innovation Center (EPIC), aims to increase the scale and speed of high-quality, equitable restoration outcomes through policy change. Email becca@policyinnovation.org if interested in learning more, sign up for our newsletter, or consider supporting us!
