The Supreme Court on Thursday curtailed the Environmental Protection Agency’s authority to police water pollution, ruling that the Clean Water Act does not allow the agency to regulate discharges into some wetlands near bodies of water.
The court held that law covers only wetlands “with a continuous surface connection” to those waters, Justice Samuel A. Alito Jr. wrote for five justices.
The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight. But there was sharp disagreement about the majority’s reasoning.
Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the E.P.A.’s ability to combat pollution.
“By narrowing the act’s coverage of wetlands to only adjoining 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 repercussions for water quality and flood control throughout the United States.”
The decision followed a ruling last year that limited the E.P.A.’s power to address climate change under the Clean Air Act.
“There,” Justice Elena Kagan wrote in a second concurring opinion, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”
The case, Sackett v. Environmental Protection Agency, No. 21-454, concerned an Idaho couple, Michael and Chantell Sackett, who sought to build a house on what an appeals court called “a soggy residential lot” near Priest Lake, in the state’s panhandle.
After the couple started preparing the property for construction in 2007 by adding sand gravel and fill, the agency ordered them to stop and return the property to its original state, threatening them with substantial fines. The couple instead sued the agency, and a dispute about whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the suit could proceed.
In a concurring opinion at the time, Justice Samuel A. Alito Jr. said the law gave the agency too much power.
“The reach of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet at least part of the year is in danger of being classified by E.P.A. employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”
The Clean Water Act allows the regulation of discharges into what the law calls “waters of the United States.” The question for the justices was how to determine which wetlands qualify as such waters.
Lower courts ruled that the Sacketts’ property was a wetland that the agency could regulate, concluding that it qualified under a 2006 Supreme Court decision, Rapanos v. United States, which featured competing tests for deciding that question.
Justice Antonin Scalia, who died in 2016, wrote for four justices in the Rapanos decision that only wetlands with “a continuous surface connection” to “relatively permanent, standing or flowing bodies of water” qualify. That standard appeared to favor the Sacketts.
Justice Anthony M. Kennedy, who retired in 2018, said in a concurring opinion that the law required only a “significant nexus” between the wetlands at issue and bodies of waters.
A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that Justice Kennedy’s opinion was the controlling one. The agency, Judge Michelle T. Friedland wrote for the panel, “reasonably determined that the Sacketts’ property contains wetlands that share a significant nexus with Priest Lake.”
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