Supreme Court on Thursday reduce the authority of the Environmental Protection Agency police millions of acres of wetlands, posing another obstacle to the agency’s ability to fight pollution.
Writing for five judges, Judge Samuel A. Alito Jr. says the Clean Water Act does not allow the agency to regulate discharges to wetlands near bodies of water unless they have a “continuous surface connection” to those bodies of water.
This decision is a second blow to the authority of the EPA and to the power of administrative agencies as a whole. Last year, the court limit EPA’s power to address climate change under the Clean Air Act.
Environmental law experts say the decision will leave many wetlands contaminated with impunity, significantly reducing the EPA’s authority to protect them under the Clean Water Act.
“This is a truly catastrophic outcome for wetlands, which have become so critical to biodiversity conservation and control,” said Patrick Parenteau, a professor at Vermont Law School. flood control.
Kevin Minoli, who served as senior attorney for the EPA from the Clintons to the Trump administration, overseeing enforcement of the Clean Water Act provisions, said the decision would have enormous practical consequences and It is estimated that it will affect more than half of the nation’s wetlands.
“If you are in an area with a lot of wetlands, but those wetlands are not directly connected to a continuous flowing body of water, those wetlands are no longer allowed,” he said. protected by the Clean Water Act.
The decision was nominally unanimous, with all judges agreeing that the homeowners who had sued should not be subject to agency oversight because the wetlands on their property were not subject to regulation. in any case. But there has been deep disagreement over a new test the majority has set up to determine which wetlands are covered by the law.
Judge Brett M. Kavanaugh, along with three concurring liberal justices, said the decision would harm the federal government’s ability to tackle pollution and flooding.
By shrinking the act’s coverage of wetlands to only adjacent wetlands, “the court’s new test will make certain adjacent wetlands accessible,” he wrote. regulation has long been deprecated by the Clean Water Act, with significant implications for water quality and flood control throughout the United States.”
In a second concurring opinion, Judge Elena Kagan, referring to the court’s decision in June to limit the EPA’s ability to limit power plant emissions, criticized the interpretation. law of the majority.
“There, the non-textualism of the majority prevented the EPA from addressing climate change by limiting power plant emissions in the most efficient way,” she wrote. Here, that method prevents the EPA from keeping our water clean by regulating adjacent wetlands. The deputy in both cases is the same: the court appointing itself as the national decision-maker on environmental policy.”
Jonathan H. Adler, a law professor at Case Western Reserve University, said the ruling is also another example of the court’s skepticism towards the authority of administrative agencies. “The current court,” he said, “is clearly unwilling to give an agency the scope of its own powers.”
Damien Schiff, an attorney with the Legal Organization of the Pacific, representing the homeowners in the case, praised the Supreme Court’s decision. “Courts now have a clear measure of the fairness and consistency of federal regulators,” he said in a statement. “Today’s ruling is a profound victory for property rights and the constitutional separation of powers.”
Michael Regan, the EPA’s administrator, said the agency will consider next steps. He said in a statement: “I am disappointed by the Supreme Court’s decision today to erode long-standing water protections.
The lawsuit, Sackett v. Environmental Protection Agency, No. 21-454, concerns an Idaho couple, Michael and Chantell Sackett, who sought to build a home on what the appeals court called “a residential area.” soggy” near Priest Lake, in the state panhandle.
After the couple began preparing the property for construction in 2007 by adding sand and gravel, the agency ordered them to stop and return the property to its original condition, threatening them with substantial fines. Instead, the couple sued the agency, and the dispute over whether the case was premature was taken to the Supreme Court in an earlier appeal. In 2012, the judges ruled that the case could proceed.
IN a concurring opinion At the time, Judge Alito said the law gave the agency too much power.
“The scope 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 as a wetland by EPA officials and by the federal government, if the property owner begin to build a home on land the agency deems to possess the necessary moisture, property owners are at the agency’s mercy.
On Thursday, all nine judges agreed that the agency had gone too far in seeking to regulate the Sacketts’ assets.
“I agree with the final court ruling,” Judge Kavanaugh wrote, “that the wetlands on the Sacketts property are not covered by the statute and are therefore not subject to the requirements about the license.”
That suggests that the court can make a much more limited ruling, Professor Parenteau said.
“They could have made a narrow decision based on the facts of the Sackett case and said that, in this case, when such a small wetland is not connected to the lake, it should not be. subject to federal control.”
Instead, he said, the majority “created a policy for the entire United States based on a specific set of facts about this property in northern Idaho.”
The two sides on Thursday differed mainly over the scope of the Clean Water Act’s provisions for wetlands “adjacent” to what the law calls “the waters of the United States.”
That second term, Judge Alito wrote, was “obviously not a well-known artistic term” and an “unpleasant drafting choice.” It includes “streams, oceans, rivers and lakes,” he said.
But what do wetlands “adjacent” to such bodies of water mean? Judge Alito wrote the term could mean “contiguous” or “near.” For the purposes of the Clean Water Act, he writes, “wetlands separate from traditionally navigable bodies of water cannot be considered part of such bodies of water, even if they are located near.”
The four minority judges took a different view.
“‘adjacent’ and ‘adjacent’ have separate meanings,” Judge Kavanaugh wrote, adding that he would include wetlands “separated from sheltered water solely by artificial dikes or barricades, natural riverbanks, sand dunes, or something like that.”
He added: “There is a good reason that Congress refers not only to adjacent wetlands but to adjacent wetlands as well. Because of the movement of water between adjacent wetlands and other bodies of water, wetland pollutants often end up in neighboring rivers, lakes, and waters.”
Judge Kagan gave an example of the difference between adjoining and adjoining.
“In ordinary language,” she writes, “one thing is adjacent to another not only when it touches it, but also when it is near. So, for example, a house is adjacent to a house. even if a strip of grass and a fence post separate the two.”
Justice Alito replied, citing an earlier decision, that Congress must use “extremely clear language if it is to significantly alter the balance between federal and state power and government power.” government over private property.”
Judge Kagan wrote that last year’s climate change decision used similar reasoning, citing “another explicitly stated rule (the so-called doctrine of key questions) to reduce a another obvious extension.”
She added: “The clear declaration rule that pops up today can only be interpreted as a reflex reaction to Congress enacting an ambitious plan for environmental regulation. It is an attempt to block anti-pollution actions that Congress deems appropriate.”
Lower courts ruled that the Sacketts property was a wetland that the agency could regulate, concluding that it qualifies under a 2006 Supreme Court decision. Rapanos v. USAwhich has competitive tests to decide that question.
Judge Antonin Scalia, who died in 2016, wrote to the four judges in the Rapanos ruling that only wetlands have a “continuous surface connection” to “relatively permanent, standing bodies of water. or flowing” is eligible.
Judge Anthony M. Kennedy, who retired in 2018, said with a consensus that the law only requires a “substantial relationship” between the problematic wetlands and the bodies of water.
Thursday’s decision refutes that view. “It is remarkable,” said Professor Adler, “that no justice sought to maintain the ‘critical relationship’ test that Justice Kennedy articulated in Rapanos.”
Davenport coral contribution report.
