On May 25, the United States Supreme Court reduced the ability of the Environmental Protection Agency (EPA) to regulate wetlands in another setback for the historic Clean Water Act. In the 5-to-4 decision, the court said the law does not allow the EPA to regulate discharges to wetlands that are near a body of water unless the wetland is has a “continuous surface connection” to these waters. .
[Related: The EPA’s roll back of the Clean Water Act could impact drinking water for millions of Americans.]
The issue before the court was the scope of the 51-year-old Clean Water Act and how courts should determine what counts as “United States waters” for the purposes of legal protection. In 2006, the court ruled in two consolidated cases that wetlands are protected by the Clean Water Act if they have a “significant connection” to regulated waters. Business interests and property rights groups have sought to restrict regulations in wetlands and areas directly related to “navigable waters”, such as lakes and rivers.
This case – Sackett v. Environmental Protection Agency – involved Michael and Chantell Sackett, a couple who wanted to build a home on what an appeals court called “a sodden residential lot” near Priest Lake in the enclave of the ‘Idaho. The Sacketts began construction in 2007 by filling in the land, and the EPA ordered them to stop. The agency threatened the couple with fines, saying they had to return their property to its original condition. Buoyed by the success of the conservative property rights group Pacific Legal Foundation, the Sacketts sued the EPA. A dispute over whether the trial was premature reached the Supreme Court on an earlier appeal, and justices ruled the trial could continue in 2012. Justice Alito said the Clean Water Act gave too much power to the EPA in a concurring opinion the same year.
Thursday’s 5-4 majority opinion is the latest ruling in a trend where the conservative-leaning court has narrowed the scope of environmental regulations. In 2022, the court restricted the EPA’s power to reduce emissions from power plants in West Virginia against the Environmental Protection Agency.
Writing for the majority, Judge Samuel Alito said the EPA’s interpretation of its power went too far. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett agreed that the Clean Water Act only applies to “wetlands having a continuous surface connection with bodies that are state waters.” fully united”.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, and Brett Kavanaugh dissented, with Kagan writing the dissenting opinion. They agreed that the Sacketts should prevail, but wrote that they would have governed for them on narrower grounds without changing what defines “United States waters.”
[Related: What would America be like without the EPA?]
In his own dissent, Justice Kavanaugh wrote: “By reducing the [Clean Water] Legal coverage of wetlands to only adjacent wetlands, court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant impacts on water quality and flood control across the United States.
Wetlands are among the most diverse and productive ecosystems on earth and the United States has approximately 75.5 million acres of wetlands. They are an important tool for slowing the rate of human-induced climate change, especially in urban areas, while protecting communities from floods and storms.
Since 1972, the Clean Water Act has dramatically reduced pollution in US waterways, leading to a major rebound in fish species. Given that wetlands like those at the center of the Sackett case have a close relationship to the wider water system of streams and rivers, the court’s decision has major potential to impact the health and quality of all waterways in the United States.
“This decision will cause incalculable harm. Communities across the country will pay the price,” Natural Resources Defense Council (NRDC) President and CEO Manish Bapna said in a statement following the decision. “What is important now is to repair the damage. The government must enforce the remaining provisions of the law that protect the clean water we all depend on for drinking, swimming, fishing, irrigation and more. States should quickly strengthen their own laws. Congress must act to restore protection to all of our waters. »
