Supreme Court on Thursday Reduced the authority of the Environmental Protection Agency To police water pollution, the Clean Water Act ruled that it does not allow the agency to regulate discharges in certain wetlands near water bodies.
Justice Samuel A. Alito Jr., writing for the five justices, said the law would only cover wetlands with “continuous surface connectivity.”
The decision is the second major blow to EPA’s authority and the authority of executive agencies in general. Last year, the court limited the EPA’s authority to address climate change under the Clean Air Act.
Environmental legal experts said the decision would severely limit the EPA’s authority to protect millions of acres of wetlands under the Clean Water Act, which could be subject to pollution without penalty.
Patrick Parenteau, a professor at the Vermont School of Law, said, “This is a very devastating outcome for wetlands, which have become absolutely essential for biodiversity conservation and flood control.
Kevin Minoli, who served as a senior EPA attorney from the Clinton through Trump administrations and oversaw the implementation of Clean Water Act regulations, estimated that the decision would have enormous practical consequences, affecting more than half of the nation’s wetlands.
“If you’re in an area with a lot of wetlands and those wetlands aren’t directly connected to a continuously flowing water body, those wetlands are no longer protected by the Clean Water Act,” he said.
The decision was nominally unanimous, with all judges agreeing that the homeowners who brought the suit should not be subject to the company’s oversight because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement over the majority’s new test for determining which wetlands are covered by the law.
Justice Brett M., who joined the three liberal justices in a unanimous opinion. Kavanagh said the decision would affect the federal government’s ability to fight pollution and flooding.
“The Court’s new test narrows the scope of the wetlands law, with significant impacts on water quality and flood control, leaving some long-regulated wetlands no longer covered by the Clean Water Act,” he wrote. America.”
In a second concurring opinion, Justice Elena Kagan criticized the majority’s interpretation of the law, citing the court’s decision in June to limit the EPA’s ability to regulate power plant emissions.
“There,” he wrote, “the majority’s non-textuality prohibited the EPA from addressing climate change by more effectively controlling power plant emissions. Here, that method prevents the EPA from keeping our nation’s waters clean by regulating nearby wetlands. In both cases, Subsidiary: Appointment of the Court as national decision-maker on environmental policy.
The ruling is another example of the court’s skepticism about the authority of executive agencies, said Jonathan H. Adler said. “The current court is clearly unwilling to defer to an agency about the scope of that agency’s own authority,” he said.
Damian Schiff, an attorney with the Pacific Legal Foundation representing the homeowners in the case, welcomed the Supreme Court’s decision. “Courts now have a clear measuring stick for fairness and consistency by federal regulators,” he said in a statement. “Today’s ruling is a profound victory for property rights and constitutional separation of powers.”
Michael Reagan, the EPA’s administrator, said the agency would consider next steps. “I am disappointed by today’s Supreme Court decision that destroys long-standing clean water protections,” he said in a statement.
The case, Sackett v. Environmental Protection Agency, no. 21-454, concerned an Idaho couple, Michael and Chantelle Sackett, who sought to build a home near Priest Lake in what the appeals court called “a wet tenement.” Panchayat of the State.
After the couple began preparing the property for construction in 2007 with sand, gravel and fill, the company stopped them and returned the property to its original condition, threatening substantial fines. The couple sued the agency instead, and a dispute over whether the suit was premature reached the Supreme Court in an earlier appeal. In 2012, Judges It ruled that the case could proceed.
In A harmonious concept At the time, Justice Alito said the law gave the agency too much power.
“The scope of the Clean Water Act is far from clear,” he wrote. “Any land that is wet for at least part of the year is at risk of being classified as a wetland covered by law by EPA staff, and according to the federal government, if property owners start building lots of homes the agency thinks have the required wetness, the property owners are at the mercy of the agency.
On Thursday, all nine justices agreed that the agency had gone too far in regulating Sacketts’ assets.
“I agree with the lower court’s decision,” Judge Kavanagh wrote, “that the wetlands on the Sacketts’ property are not covered by statute and are therefore not subject to the permit requirements.”
That suggested the court might have given a more limited ruling, Professor Parenteau said.
“They may have made a narrow decision based on the facts of the Sackett case, in which case, if a wetland is small and not connected to a lake, it shouldn’t be subject to federal regulation.”
Instead, he said, the majority “framed a policy for the entire United States based on this one particular fact of this property in northern Idaho.”
The two sides on Thursday differed mainly over the Clean Water Act’s coverage of “adjacent” wetlands, which the law calls “waters of the Americas.”
That second time, Justice Alito wrote, was “not a well-known term of art” and “a desperate draft choice.” That includes “streams, oceans, rivers and lakes,” he said.
But what does it mean for wetlands to be “near” such bodies of water? The word, Justice Alito wrote, can mean “continually” or “adjacent.” For purposes of the Clean Water Act, he wrote, “wetlands that are separate from traditional navigable water bodies, even if they are located nearby, cannot be considered part of those water bodies.”
Four justices in the minority took a different view.
“‘Adjacent’ and ‘adjacent’ have separate meanings,” Judge Kavanagh wrote, “and may also include wetlands separated from a man-made dike or barrier, a natural river bed, a beach dune, or an enclosed body of water. Option.”
He added: “There is good reason for Congress to include not only contiguous wetlands, but adjacent wetlands as well. Due to the movement of water between nearby wetlands and other bodies of water, pollutants in wetlands often end up in nearby rivers, lakes and other bodies of water.
Justice Kagan gave an example of the difference between proximate and proximate.
“In ordinary language,” he wrote, “one object is not only in touch with another, but also near. Thus, for example, a house is near another even when grass and picket fences separate the two.
Justice Alito responded, citing an earlier decision, saying, “If Congress wants to significantly alter the balance between federal and state power and the government’s power over private property, Congress must use very clear language.”
Justice Kagan wrote that last year’s climate change decision used similar reasoning, using “another clear-statement rule (the so-called big questions doctrine) to undercut another clear-cut term.”
He added: “Today’s pop-up clear-report rule can only be interpreted as a reflexive response to Congress’s enactment of an ambitious plan of environmental regulation. It’s an attempt to assume that Congress’s anti-pollution actions will be appropriate.”
Lower courts ruled that the Sacketts’ property was a wetland, concluding that it qualified under a 2006 Supreme Court ruling. Rapanos vs. USA It consisted of competitive exams to decide the question.
Justice Antonin Scalia, who died in 2016, wrote for four justices in the Rapanos decision that only wetlands with “continuous surface connectivity” qualify as “relatively permanent, standing or flowing bodies of water.”
Justice Anthony M., who retired in 2018. Kennedy said the consensus was that the law only requires a “significant connection” between the wetlands and water bodies at issue.
Thursday’s decision rejected that notion. “It is striking,” said Professor Adler, “that no justice has sought to uphold the ‘significant nexus’ test articulated by Justice Kennedy in Rapanos.”
Coral Davenport Contributed report.