Supreme Court curtails Clean Water Act

This article was updated on May 25 at 12:55 p.m.

The Supreme Court on Thursday established a more stringent test to determine whether the Clean Water Act applies to a wetland. The ruling was a setback for the Environmental Protection Agency and a victory for an Idaho couple, Michael and Chantell Sackett, who have been battling with the federal government for over 15 years in their efforts to build a house on an empty lot near a large lake.

The Sacketts’ legal battle began shortly after they began backfilling their property to prepare the lot, which is about 300 feet from Priest Lake, for construction back in 2007. The Sacketts received a notice from the EPA to stop work because their lot contains wetlands protected by the CWA, which bars the discharge of pollutants, including rocks and sand, into “navigable waters.” The CWA defines navigable waters as “waters of the United States.” The EPA reasoned that the wetlands on the Sacketts’ lot fed into a non-navigable creek that then led to Priest Lake.

In agreeing that the Sacketts’ lot is a wetland, the U.S. Court of Appeals for the 9th Circuit applied the test outlined by Justice Anthony Kennedy in Rapanos v. United States: whether there is a “significant nexus” between the wetlands and waters that are covered by the CWA, and whether the wetlands “significantly affect” the quality of those waters.

On Thursday the Supreme Court reversed the 9th Circuit’s ruling. Instead, Justice Samuel Alito explained, courts should apply a more stringent test, outlined by four justices (including Alito, Chief Justice John Roberts, and Justice Clarence Thomas) in Rapanos, in which the CWA applies to a particular wetland only if it blends or flows into a neighboring water that is a channel for interstate commerce.

Alito pointed to the text of the CWA, emphasizing that the law’s use of the term “waters” generally refers to relatively permanent bodies of water such as lakes and rivers. But when the law is read as a whole, Alito continued, it is clear that some “adjacent” wetlands will also qualify as “waters of the United States.” This means, he wrote, that wetlands that are entirely separate from traditional bodies of water will not qualify. But the CWA will apply, Alito concluded, to wetlands that are “as a practical matter indistinguishable from waters of the United States” because they have a “continuous surface connection” with a larger body of water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Under that test, Alito explained, the lower court’s ruling must be reversed. “The wetlands on the Sacketts’ property,” he reasoned, “are distinguishable from any possibly covered waters.”

Alito rejected the “significant nexus” rule advanced by Kennedy in Rapanos and by the EPA in this case, describing it as “particularly implausible.” Under the EPA’s rule, Alito emphasized, it would be difficult if not impossible for many landowners to determine whether the CWA would apply to their property – an especially undesirable result when those landowners could face “severe criminal sanctions for even negligent violations” of the law.

Justice Clarence Thomas penned a separate concurring opinion that was joined by Justice Neil Gorsuch. Thomas contended that the Supreme Court’s ruling in the Sacketts’ case “curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial highways into something resembling ‘a local zoning board.’” But, Thomas cautioned, Congress limited federal power under the CWA, and the EPA and the U.S. Army Corps of Engineers should “respect that decision.”

And more broadly, Thomas characterized the court’s cases interpreting the CWA as “indicative of deeper problems with the Court’s” cases interpreting the Constitution’s commerce clause, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” When the Constitution was drafted, Thomas noted, the term “commerce” referred to “trade or exchange — not all economically gainful activity that has some attenuated connection to trade or exchange.” But the Supreme Court, Thomas complained, has strayed from that “limited meaning” and “licensed federal regulatory schemes that would have been ‘unthinkable’ to the Constitution’s Framers and ratifiers.”

Four justices – Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson – agreed that the CWA does not apply to the wetlands on the Sacketts’ lot, but they disagreed with the majority’s reasoning. In an opinion joined by the three liberal justices, Kavanaugh contended that “[b]y narrowing the Act’s coverage of wetlands to only adjoining wetlands, 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.” For example, Kavanaugh noted, under the court’s new test, the wetlands on the other side of levees on the Mississippi River will not be covered by the CWA, even though they “are often an important part of the flood-control project” for the river. Moreover, Kavanaugh added, the court’s new test “is sufficiently novel and vague” that it will create precisely the kind of regulatory uncertainty that the majority criticized.

Instead, Kavanaugh would adopt a more expansive test, under which the CWA would apply to wetlands that are either next to a larger body of water or separated from such a body of water by a man-made or natural barrier, such as a dike or a beach dune. Because the wetlands on the Sacketts’ lot “do not fall into either of those categories,” Kavanaugh agreed that they would still not be covered by the CWA. 

Kagan also wrote a brief opinion of her own, joined by Sotomayor and Jackson, in which she criticized what she characterized as “the Court’s appointment of itself as the national decision-maker on environmental policy.” In her view, Congress deliberately drafted the CWA with a broad reach to “address a problem of ‘crisis proportions.’” Although the majority disagrees with that decision, she wrote, it cannot “rewrite Congress’s plain instructions because they go further than” the court would like. But that is precisely what the majority did here, she concluded, just as it did last year when it curtailed the EPA’s authority to regulate greenhouse gas emissions.

Damien Schiff of the Pacific Legal Foundation, who represented the Sacketts, said in a press release that Thursday’s decision “returns the scope of the Clean Water Act to its original and proper limits.” “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers,” Schiff said.

But Sam Sankar of the environmental group Earthjustice criticized the decision, saying that it “undoes a half-century of progress generated by the Clean Water Act.  Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers.” “The Court’s decision to deregulate wetlands will hurt everyone living in the United States,” Sankar said.