US Supreme Court Limits Federal Government’s Ability to Control Wetland Pollution

The Supreme Court on Thursday sharply limited the federal government’s power to control water pollution in certain wetlands, the second decision in as many years in which a conservative majority has narrowed the scope of environmental regulations.

The result could threaten efforts to control Mississippi River flooding and protect the Chesapeake Bay, among many projects, Judge Brett Kavanaugh wrote, breaking with the other five conservatives.

Judges bolstered property rights over drinking water concerns in a ruling in favor of an Idaho couple seeking to build a home near Priest Lake in the state’s begging. Chantell and Michael Sackett objected when federal authorities identified a soggy portion of the property as a wetland that required them to obtain a permit before filling it with rocks and dirt.

By a 5-4 vote, the court said in an opinion by Judge Samuel Alito that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger masses. regulated water. There is no such connection on the Sacketts property.

The court abandoned the 17-year-old opinion of their former colleague, Anthony Kennedy, allowing regulation of what can be dumped into wetlands that could affect the health of larger waterways.

Kennedy’s view of wetlands having a “significant connection” to larger bodies of water had been the standard for assessing whether permits were needed for discharges under the landmark 1972 Environmental Act.

Opponents had objected that the standard was vague and unworkable.
Conservationists said the new standard would remove protections from millions of acres of wetlands across the country.

Reacting to the decision, Manish Bapna, the chief executive of the Natural Resources Defense Council, called on Congress to amend the Clean Water Act to restore wetland protection and for states to strengthen their own laws.

“The Supreme Court ripped out the heart of the law we depend on to protect America’s waters and wetlands. The majority chose to protect polluters at the expense of the health of wetlands and waterways. This decision will cause damage communities across the country will pay the price,” Bapna said in a statement.

The outcome will almost certainly affect ongoing court battles over new wetland regulations the Biden administration put in place in December. Two federal judges have temporarily blocked the application of these rules in 26 states.

EPA Administrator Michael S. Regan said the Clean Water Act was responsible for “transformational progress” in cleaning up the nation’s waterways.

“I am disappointed with today’s Supreme Court decision which erodes longstanding drinking water protections,” he said in a statement.

Damien Schiff, who represented the Sacketts on the Supreme Court, said the ruling appropriately narrows the scope of the law.

“The courts now have a clear yardstick for the fairness and consistency of federal regulators. Today’s decision is a profound victory for property rights and the constitutional separation of powers,” Schiff said. in a statement released by the property rights-focused Pacific Legal Foundation.

In Thursday’s ruling, all nine justices agreed that wetlands on the Sacketts’ property are not covered by law.

But only five judges joined the opinion that imposed a new test to assess when wetlands are covered by the Clean Water Act. Chief Justice John Roberts, Justice Clarence Thomas and Alito reportedly adopted the narrower standard in 2006, in the last major wetlands case before the Supreme Court. They were joined Thursday by judges Neil Gorsuch and Amy Coney Barrett.

Kavanaugh and the three liberal justices on the court accused their colleagues of rewriting that law.

Kavanaugh wrote that “the court’s overly narrow new test may leave wetlands long regulated and long accepted as capable of being regulated suddenly beyond the reach of agency regulatory authority”.

Judge Elena Kagan wrote that the majority’s rewrite of the law was “an effort to contain anti-pollution actions Congress deemed appropriate.” Kagan referenced last year’s decision limiting the regulation of greenhouse gas emissions under the Clean Air Act.

In both cases, she noted, the court had “declared itself the national environmental policy maker.” Kagan was joined in what she wrote by fellow liberals Sonia Sotomayor and Ketanji Brown Jackson.

The Sacketts paid $23,000 for 0.63 acres of land near Priest Lake in 2005 and began building a three-bedroom home two years later.

They had filled part of the property, described in an appeal decision as “soggy residential land”, with rocks and dirt in preparation for construction, when Environmental Protection Agency officials showed up and ordered the work to stop.

They also won a first round in their legal battle at the Supreme Court.

The San Francisco federal appeals court upheld the EPA’s decision in 2021, finding that a portion of the property, 300 feet from the lake and 30 feet from an unnamed waterway that empties into the lake, was made up of wetlands.

The Sacketts’ own consultant had also informed them years ago that their property contained wetlands.