Supreme Court limits EPA’s authority to address water pollution
The Supreme Court Thursday limited the authority of the Environmental Protection Agency against police water pollution, ruling that the Clean Water Act does not allow the agency to regulate discharges in some wetlands near bodies of water.
The court ruled that the law covers only wetlands “with continuous surface connection” to those waters, Judge Samuel A. Alito Jr. wrote. before five judges.
The decision was nominally unanimous, with all judges agreeing that the homeowners who brought the case should not have come under the agency’s scrutiny. But there was sharp disagreement over the reasoning of the majority.
Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the EPA’s ability to fight pollution.
“By narrowing the Act’s coverage of wetlands to only adjacent wetlands,” he wrote, “the court’s new test will ensure that some long-regulated adjacent wetlands are no longer covered by the Clean Water Act, with significant impacts on the water quality and flood control throughout the United States.”
The decision followed a ruling last year that limited the EPA’s authority to address climate change under the Clean Air Act.
“There,” Judge Kagan wrote in a second concurring opinion, “the non-textual nature of the majority prevented the EPA from addressing climate change by curbing power plant emissions in the most effective way possible. Here, that method prevents the EPA keeps our nation’s waters clean by regulating adjacent wetlands. The vice is the same in either case: the court’s appointment of itself as the national decision-maker on environmental policy.”
The case, Sackett v. Environmental Protection Agency, No. 21-454, involved an Idaho couple, Michael and Chantell Sackett, who wanted to build a house on what an appeals court called “a waterlogged residential lot” near Priest Lake, in the coup.
After the couple began preparing the property for construction in 2007 by adding sand gravel and embankment, the agency ordered them to stop and return the property to its original state, threatening them with significant fines. The pair 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 reigned that the lawsuit could proceed.
In a concurring opinion Justice Samuel A. Alito Jr. said at the time that the law gave the agency too much power.
“The reach of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet for at least part of the year is at risk of being classified by EPA staff as wetlands under the law, and according to the federal government, if property owners begin building a home on a plot that the agency thinks has the necessary moisture, the property owners are at the mercy of the agency.”
The Clean Water Act allows regulation of discharges into what the law calls “waters of the United States.” The question for the judges was how to determine which wetlands qualify as such bodies of water.
Lower courts ruled that the Sacketts’ property was a wetland that the agency could regulate, concluding that it was eligible under a 2006 Supreme Court decision, Rapanos v. United Stateswith competing tests to answer that question.
Judge Antonin Scalia, who died in 2016, wrote for four judges in the Rapanos decision that only wetlands with “a continuous surface connection” to “relatively permanent, standing or flowing bodies of water” qualify. That default appeared to favor the Sacketts.
Judge Anthony M. Kennedy, who retired in 2018, said in a concurring opinion that the law only required a “significant relationship” between the wetlands in question and bodies of water.
A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reigned that Judge Kennedy’s opinion was decisive. The agency, Judge Michelle T. Friedland wrote for the panel, “reasonably determined that the property of the Sacketts contains wetlands that share an important connection with Priest Lake.”