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EPA Supreme Court Ruling Limits Clean Water Act Enforcement

The Supreme Court on Thursday slashed the Environmental Protection Agency’s power to regulate the nation’s wetlands, another setback for the agency’s authority in tackling air and water pollution. ‘water.

The problem was the scope of the landmark 51-year-old Clean Water Act and how the courts should determine what counts as “United States waters” under the protection of the law. Nearly two decades ago, the court ruled that wetlands are protected if they have a “significant connection” to nearby regulated waters.

Judge Samuel A. Alito Jr., writing for himself and four other court conservatives, rejected that test and imposed one that environmentalists say will remove millions of acres of environmentally sensitive land from regulation. federal.

“We believe that the CWA extends only to wetlands having a continuous surface connection with bodies that are ‘waters of the United States’ in their own right, such that they are ‘indistinguishable’ from those waters. “, Alito wrote, citing passages from the past. opinion of the courts. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.

All the judges agreed that federal regulators went too far in the current case, which involved an Idaho couple’s quest to build a house near a lake. But instead of a narrow ruling saying just that, the majority of the court sided with a decades-long effort by property rights groups and businesses to restrict regulations to wetlands and other areas. other areas directly related to ‘navigable waters’ such as rivers and lakes.

Judge Elena Kagan argued against the court’s liberal name, saying her fellow conservatives on Thursday showed the same zeal they displayed last season to limit the EPA’s ability to fight climate change.

There, the majority “banned the EPA from addressing climate change by reducing 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,” Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

“The vice in both cases is the same: the Court designates itself as the national decision-maker in matters of environmental policy.”

All three justices agreed with Justice Brett M. Kavanaugh, who had won the majority in the climate change case.

He wrote that the new majority test “departs from statutory language, 45 years of consistent agency practice and precedents in this Court” and will have “significant implications for water quality and flood control across the United States”. He mentioned levee systems along the Mississippi River and Chesapeake Bay cleanup projects as initiatives that could suffer from the new majority rules.

The decision affects one of the EPA’s most fundamental authorities, its ability to extend protections to upstream waters to protect downstream water quality for drinking and wildlife. That will prevent the agency from putting in place federal protections on as many as 118 million acres of wetlands, an area larger than the landmass of California, according to estimates by environmental firm Earthjustice.

It gives a win to farmers, home builders and other developers who are likely to now find it easier to get building permits, lawyers and trade groups have said. And it will likely force the Biden administration to abandon — or at least restart — an effort it started in 2021 to resolve years of uncertainty with new definitions about what kind of waterways the EPA rules. can protect, leaving more of that power to state governments, lawyers and legal experts have said.

“I don’t see how they’re getting away with it,” said attorney Rafe Petersen, who represents miners, offshore wind developers and others seeking EPA permits for Holland & Knight. “The Biden administration is really stuck in the corner.”

The impact will vary from state to state, said Jonathan H. Adler, a law professor at Case Western Reserve University, depending on how stringently those jurisdictions regulate wetlands and other issues.

Administration officials called the decision a disappointment that erodes longstanding protections. And EPA and White House officials said administration lawyers will review the decision to determine President Biden’s next steps.

The president, in a statement, called it a “disappointing decision” that “will set our country back.”

“Today’s decision upends the legal framework that has protected U.S. waters for decades,” Biden said. “It also challenges the science that confirms the essential role of wetlands in protecting our country’s streams, rivers and lakes from chemicals and pollutants that harm the health and well-being of children. , families and communities.”

The judges were considering for the second time the plans of Michael and Chantell Sackett, who want to build a house on their property near Priest Lake, one of the largest in Idaho. The EPA says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the CWA and allows the government to require permits and issue penalties for violations.

Conservationists have called on the court to retain the government’s authority to protect and regulate waterways that significantly affect water quality downstream and warned that developers would profit from weaker regulations. Under the Sacketts’ proposed definition of the law, they said, about half of all wetlands and about 60 percent of waterways would no longer be federally protected.

Along with other legal observers, Petersen said the latest ruling could have far-reaching consequences. Alito’s ruling says court requires Congress to ‘adopt extremely clear language’ on rules that could affect private property, which some lawyers say could bring a new level of scrutiny to other standards fundamental environmental measures aimed at combating air pollution and climate change.

“It can be construed as challenging virtually all modern environmental regulations,” said Sam Sankar, senior vice president of programs at Earthjustice, which filed briefs in the case on behalf of 18 Native American tribes. “Polluters will certainly read this as an indication that it’s open season on environmental law.”

Adler said he wasn’t sure about that. “I don’t think there’s anything new” about Alito’s requirement for a clear statement in the law, he said. But he agreed the court certainly showed skepticism about the agency’s powers and its broad interpretations of the laws.

How the EPA Supreme Court ruling will affect U.S. wetlands and drinking water

In a sense, the court was reversing a decision it had made 17 years ago, when it too was divided on the issue. In this case, Rapanos v. UNITED STATES, Judge Antonin Scalia wrote for four judges that only wetlands having “a continuous surface connection” with “relatively permanent” bodies of water can be regulated by law.

But the prevailing test in Rapanos was one of the now retired judges Anthony M. Kennedy, who said there should be only a “meaningful connection” between wetlands and regulated waters.

Adler noted that none of the judges endorsed the “significant connection” rule, and Alito’s test essentially replaces the Scalia test.

Alito hailed the Clean Water Act as a “great success,” but also said it could be a “powerful weapon” for federal regulators.

“Regulation of land and water use is at the heart of traditional state authority,” he wrote. “Too broadly interpreting the scope of the CWA would impinge on that authority. The area covered by wetlands alone is vast – larger than the land area of ​​California and Texas combined. And the scope of the EPA’s conception of “US waters” is truly staggering.

Kagan said Alito’s emphasis was wrong. She said it puts “a thumbs up on the scale for landlords – it doesn’t matter that the law (i.e. the one that Congress enacted) is aimed at preventing landlords from polluting.”

Kavanaugh said the majority misinterpret the language of the law. All agree that wetlands adjacent to regulated waters are included, he said, but it also provides for those adjacent to waters.

Throughout 45 years “and through eight presidential administrations, the corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters, but also wetlands which are separated from covered waters by a dyke or artificial barrier, natural river berm, beach dune, etc Kavanaugh wrote. His opinion was joined by Kagan, Sotomayor and Jackson.

“We must not create ambiguity where there is none,” Kavanaugh wrote. “And we cannot rewrite ‘adjacent’ to mean the same as ‘adjoining’, as the Court does today.”

The Sacketts, backed by the conservative Pacific Legal Foundation, secured local planning permission 15 years ago to begin construction on their land, about 300 feet from the lake. Their plot is bounded on two sides by roads and separated from the lake by a row of houses.

EPA put plans on hold, threatening fines of more than $40,000 a day if the Sacketts did not stop construction. The couple went to court to block the EPA order and asked judges to narrow the definition of “United States waters” so that their lands would not be covered by the Clean Water Act.

The fight over what constitutes a CWA wetland has been raging for decades. The George W. Bush administration first issued guidelines limiting the scope of the Clean Water Act in 2003 and 2008, following previous Supreme Court rulings.

In 2015, the Obama administration expanded the scope of the law to cover even ephemeral streams and ponds. North Dakota, Wyoming, Alaska and other states immediately filed a lawsuit in federal court, resulting in a nationwide stay from a federal appeals court in Ohio. As the challenges dragged on and led to a slew of different decisions, the Trump-era EPA repealed the rule and in 2019 created a new, weaker one.

The Biden administration has tried to strike a balance by rolling back the Trump-era rule and redefining EPA oversight as covering “traditional waterways,” including interstate waterways and sources of water. upstream water that influence the health and quality of these waterways.

The case is Sackett v. Environmental Protection Agency.


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