On May 25th, 2023, the U.S. Supreme Court issued a 5-4 decision on Sackett v. EPA, No. 21-454. This case follows the recent Supreme Court’s trend loosening environmental protection laws and weakening agency power. Here, the Court’s ruling will shrink the U.S. Environmental Protection Agency (EPA)’s jurisdiction to enforce the Clean Water Act (CWA), by limiting regulatory authority to wetlands only if they have a continuous surface water connection to navigable waters such that they are indistinguishable from these bodies of water.
Background
This case began when Michael and Chantell Sackett purchased property near Lake Priest, Idaho, looking to build a home, which led them to backfill the wetland their property sat on. Their actions were challenged by the EPA as a violation of the CWA for dumping pollutants into “waters of the United States.” After many years of litigation and appeals, the case came to the U.S. Supreme Court for the second time in October 2022 to determine whether the wetland filled by the Sacketts was considered waters of the United States and under the EPA’s jurisdiction to regulate.
In the CWA, navigable waters and waters of the United States are used interchangeably to describe the bodies of water that fall under CWA protection. The EPA and the Army Corp of Engineers (Army Corps)—the relevant agencies under the CWA—have issued several rules defining waters of the United States throughout the life of the CWA. Under the agencies’ rule relevant to the Sackett case, waters of the United States included navigable waters, interstate waters, territorial seas, their tributaries, and adjacent wetlands. However, the question posed to the Court is what the word “adjacent” actually means, and which wetlands should be included as waters of the United States.
Rapanos v. United States was the most recent U.S. Supreme Court case on this issue, before Sackett, and the least elucidative about the definition of waters of the United States. The case ended with a plurality opinion from the Supreme Court—a 4-4-1 split. The two most influential opinions to come out of Rapanos were those of Justice Scalia and Justice Kennedy.
Justice Scalia proffered that wetlands adjacent to waters of the United States should only include those with a continuous surface water connection to navigable waters, language that had never been previously used in the regulatory framework of the CWA. Justice Kennedy’s opinion allowed for a much broader interpretation, requiring a significant nexus between the wetland and the body of water in order for the wetland to itself be considered waters of the United States. Kennedy describes this significant nexus as a wetland that “significantly affect[s] the chemical, physical, and biological integrity of such waters.”
Kennedy’s opinion has shaped the EPA and the Army Corps’ rules and regulations post-Rapanos, allowing for a case-by-case determination of nexus over areas for which it was unclear whether they classified as waters of the United States. The rules finalized by the EPA in 2015 and again under the Biden Administration in 2023 have been challenged by the decision in Sackett v. EPA, and as such, the agency will likely have to go back to the drawing board to develop a more limited regulation.
The Sackett Opinion
The majority opinion, written by Justice Alito—joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett—undermines the EPA’s regulations by limiting “adjacent wetlands” to only those with a “continuous surface connection” that makes them indistinguishable from “waters,” such as a stream, ocean, river, or lake. This not only shows a lack of understanding of ecosystem hydrology and the importance of wetlands to the health and safety of the environment, but also demonstrates the current Court’s willingness to overstep their role when it comes to making policy. As Justice Kagan states in her concurrence, an echo from her dissent in West Virginia v. EPA—“the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.”
This is demonstrated by the majority’s promulgation of only one possible definition of “adjacent” to come to their decision. This is ironic considering that the Court has put such emphasis on the need for “exceedingly clear language” when the effect of laws shifts the balance of federal and state power. The majority seems to ignore additions to the CWA from amendments in 1977 that included adjacent wetlands as a category needing federal protection with permitting, and the purpose of the CWA itself, ending with a ruling that uses language that makes little semantic and ecological sense.
In both of their concurrences (in judgment only), Justice Kavanaugh—joined by Justices Kagan, Jackson, and Sotomayor—and Justice Kagan—joined by Justices Jackson and Sotomayor—emphasize the way the EPA and Army Corps have recognized adjacent wetlands for “almost half a century,” that the majority ignores. This being that a wetland comes within the act if “(i) it is ‘contiguous to or bordering a covered water, or (ii) if it is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.’” The majority, as argued by Justices Kavanaugh and Kagan, conflates the definition of “adjoining” with “adjacent,” which in turn narrows the scope of the CWA from how it was drafted by Congress.
Effects
This case, much like West Virginia v. EPA, has implications for executive agency power and how federal statutes will be interpreted by the Court going forward. With the way the majority limited EPA’s ability to interpret statutory language with discretion and deference, EPA and other similar agencies will likely be limited to regulating only precise and exact language of federal statutes. This could be problematic, as agencies like the EPA were developed in order to act in an expert capacity when enforcing federal laws—expertise that Congresspeople do not necessarily have—and to act to address problems as they arise, many of which are unforeseen when statutes are being drafted.
Along with weakened deference to agency decision-making, wetlands and other similar waterways that do not fall into the majority’s very narrow rule will no longer be subject to federal CWA permitting and protection, leaving many of these important hydrological structures completely unprotected. This will leave them vulnerable to discharged pollutants that will impact the health of those ecosystems as well as the ones downstream. The Environmental Law Institute has determined that 24 states rely entirely on the CWA to protect these types of wetlands and other structures, rather than protecting them independently, and even more will experience gaps in their state’s protection coverage following the Sackett decision.
With this narrowing of federal law by the Supreme Court, it is now up to the state and local governments to reign in the potential, and likely, flood of development that will stem from the Sackett decision. This will not only destroy delicate ecosystems that have very real impacts on other bodies of water, but it will have profound effects on the communities and developments that will now be without the ecosystem services of wetlands, including flood control. With many such states being in the Southern part of the United States, in coming years, flooding and other forms of extreme weather events from climate change will be hitting them the hardest, particularly if these wetlands, many serving as flood mitigation, are not protected.
By Alex Sadzewicz, Fair Shake Legal Intern
