The Supreme Court limits the power of the E.P.A. to deal with water pollution (2023)

Supreme Court this Thursdaydecreased the authority of the Environmental Protection Agencyto monitor millions of acres of wetlands, causing another setback to the agency's ability to address contamination.

Judge Samuel A. Alito Jr. wrote for five judges. he said the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have "continuous surface connection" to those waters.

The decision was a second major blow to the EPA's authority. and in the power of administrative authorities in general. cut last yearlimited the power of the E.P.A. cope with climate changeunder the Clean Air Act.

Environmental law experts said the decision would expose many wetlands to pollution without penalty, dramatically undermining the EPA's authority to protect them under the Clean Water Act.

"This is a truly disastrous result for wetlands, which have become absolutely vital for biodiversity conservation and flood control," said Patrick Parenteau, a professor at Vermont Law School.

Kevin Minoli, who worked his senior year at E.P.A. A lawyer for the Clinton-Trump administrations, who oversees enforcement of the Clean Water Act, said the decision would have huge practical implications and estimated it would affect more than half of the country's wetlands.

"If you are in an area with a lot of wetlands, but those wetlands are not directly connected to a continuous stream of water, those wetlands are no longer protected under the Clean Water Act," he said.

The decision was nominally unanimous, with all the justices agreeing that the landowners who brought the case should not be subject to agency oversight, because wetlands on their properties were not subject to regulation. But there was a big disagreement over a new test that the majority created to determine which wetlands are covered by the law.

Justice Brett M. Kavanaugh, joined by the three liberal justices in a favorable opinion, said the ruling would undermine the federal government's ability to address pollution and flooding.

"By limiting the Act's wetland coverage to adjacent wetlands," he wrote, "the court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant implications for the water quality and flood control. State".

In a favorable second opinion, Justice Elena Kagan, citing the court's June decision limiting the EPA's ability to cap emissions from power plants, criticized the majority's interpretation of the law.

“There,” he wrote, “the non-textual nature of the majority blocked the E.P.A. tackling climate change by reducing emissions from power plants in the most effective way. Here, this method prevents the E.P.A. keep our country's waters clean by regulating adjacent wetlands. The error in both cases is the same: the designation of the court itself as national decision-maker in matters of environmental policy”.

The ruling was also another example of the court's skepticism about the authority of administrative agencies, said Jonathan H. Adler, a Case Western Reserve University law professor. "The current court," he said, "is clearly not willing to cede the scope of that agency's own power to any agency."

Damien Schiff, a lawyer with the Pacific Legal Foundation who is representing the property owners in the case, praised the Supreme Court's decision. "The courts now have a clear measure of fairness and consistency from federal regulators," he said in a statement. "Today's decision is a great victory for property rights and the constitutional separation of powers."

President Biden expressed his dismay at the decision, saying his administration would consider next steps. “This puts our nation’s wetlands, and the rivers, streams, lakes, and ponds associated with them, at risk of contamination and destruction, endangering the freshwater resources on which millions of American families, farmers, and businesses depend. ", said. a declaration. statement.

The case, Sackett v. Environmental Protection Agency No. 21-454, involved an Idaho couple, Michael and Chantell Sackett, who planned to build a home on what an appeals court called a "waterlogged residential lot" near Priest Lake on the state fringe.

After the couple began preparing the property for construction in 2007, adding gravel and sand, the agency ordered them to stop and return the property to its original condition, threatening them with significant fines. Instead, the couple sued the agency, and a dispute over whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the ministersdecided that the proceedings could continue.

ema concurring opinionJudge Alito said at the time that 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 by the E.P.A. workers like wetlands covered by the law, and according to the federal government, if homeowners start building a home on land the agency believes has the necessary moisture, homeowners will be at the agency's mercy.

On Thursday, the nine justices agreed that the agency had gone too far in trying to regulate the Sacketts' property.

"I agree with the court's final ruling," Judge Kavanaugh wrote, "that wetlands on the Sackett property are not covered by law and therefore not subject to permit requirements."

This suggests that the court could have made a much more limited decision, Professor Parenteau said.

"They could have made a limited decision based on the facts of the Sackett case and said that in this case, where a wetland is so small and not connected to the lake, it should not be subject to federal control."

Instead, he said, the majority "created an all-America policy based on this particular set of facts about this northern Idaho property."

On Thursday, the two sides differed primarily over the Clean Water Act's coverage of wetlands "adjacent" to what the law calls "US waters."

That second term, Justice Alito wrote, "is certainly not a well-known artistic term" and a "frustrating choice of words." He said it included "streams, oceans, rivers, and lakes."

But what does it mean for wetlands to be "adjacent" to such bodies of water? Judge Alito wrote that the term can mean "adjacent" or "nearby." For the purposes of the Clean Water Act, he wrote, "wetlands separated from traditional navigable waters cannot be considered part of those waters, even if they are in close proximity to each other."

The four minority judges held the opposite opinion.

"'Contiguous' and 'contiguous' have different meanings," Judge Kavanaugh wrote, adding that it would have included wetlands that are "separated from water covered only by an artificial levee or barrier, natural river berm, beach dune, or Something similar. "

He added: “There is a good reason why Congress included not only adjacent wetlands, but also adjacent wetlands. Due to the movement of water between adjacent wetlands and other bodies of water, contaminants from wetlands often end up in adjacent rivers, lakes and other bodies of water.

Judge Kagan gave an example of the difference between adjacent and contiguous.

"In common parlance," he wrote, "one thing joins another, not only when touched, but when approached. Separate. Both."

Justice Alito responded, 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 the government's power over private property."

Justice Kagan wrote that last year's climate change decision used similar reasoning, invoking "another simple statement rule (the so-called main issues doctrine) to detract from another obviously expansive term."

He added: “Today's clear emerging rule can only be explained as a thoughtful response to Congressional approval of an ambitious environmental regulatory plan. It is an effort to curb anti-pollution actions that Congress deems appropriate."

Lower courts ruled that the Sacketts' property was a swamp that the agency could regulate, finding it eligible under a 2006 Supreme Court decision.Rapanos v. against, with competitive tests to answer this question.

Justice Antonin Scalia, who died in 2016, wrote to four justices in the Rapanos decision that only wetlands with "a continuous surface connection" qualify as "relatively permanent, permanent, or flowing bodies of water."

Justice Anthony M. Kennedy, who retired in 2018, said in a favorable vote that the law only required a "significant relationship" between the wetlands in question and the bodies of water.

Thursday's decision rejected that view. "It is astonishing," said Professor Adler, "that no judge has attempted to preserve the 'significant consistency' test that Justice Kennedy articulated in Rapanos."

Coral Davenport contributed to this reporting.