The Supreme Court Has Narrowed the Scope of the Clean Water Act

August 2023 | Volume 15, Issue 1

Read the full article from NPR.

According to the article, the United States Supreme Court Court has significantly curtailed the power of the Environmental Protection Agency to regulate the nation's wetlands and waterways. It was the court's second decision in a year limiting the ability of the agency to enact anti-pollution regulations and combat climate change.

The challenge to the regulations was brought by Michael and Chantell Sackett, who bought property to build their dream house about 500 feet away from Idaho's Scenic Priest Lake, a 19-mile stretch of clear water that is fed by mountain streams and bordered by state and national parkland. Three days after the Sacketts started excavating their property, the EPA stopped work on the project because the couple had failed to get a permit for disturbing the wetlands on their land.

Now a conservative Supreme Court majority has used the Sacketts' case to roll back longstanding rules adopted to carry out the 51-year-old Clean Water Act.

While the nine justices agreed that the Sacketts should prevail, they divided 5-to-4 as to how far to go in limiting the EPA's authority.

Writing for the court majority, Justice Samuel Alito said that the navigable waters of the United States regulated by the EPA under the statute do not include many previously regulated wetlands. Rather, he said, the CWA extends to only streams, oceans, rivers and lakes, and those wetlands with a "continuous surface connection to those bodies."

Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the CWA was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."

In addition to joining Kavanaugh's opinion, the court's liberals signed on to a separate opinion by Justice Elena Kagan. Pointing to the air and water pollution cases, she accused the majority of appointing itself instead of Congress as the national policymaker on the environment.

President Biden, in a statement, called the decision "disappointing."

It "upends the legal framework that has protected America's waters for decades," he said. "It also defies the science that confirms the critical role of wetlands in safeguarding our nation's streams, rivers, and lakes from chemicals and pollutants that harm the health and well-being of children, families, and communities."

Two former EPA chiefs see the decision as a major setback for the nation's environment, and its future in combating the effects of climate change. William K. Reilly, who served as EPA administrator in the George H.W. Bush administration, said that while he understands the economic objections of farmers and builders to many wetland regulations, the Supreme Court's decision is "too broad" and will only limit further the already disappearing wetlands that protect many parts of the country from flooding and drought.

Carol Browner, who served as EPA administrator in the Obama administration, echoed those sentiments, calling the decision "a major blow to the landmark Clean Water Act and the federal government's ability to protect our people from pollution and its negative health side effects."

The decision also dismayed environmental groups.

"I don't think it's an overstatement to say it's catastrophic for the Clean Water act," said Jim Murphy of the National Wildlife Federation. Wetlands play an "enormous role in protecting the nation's water," he said. "They're really the kidneys of water systems and they're also the sponges. They absorb a lot of water on the landscape. So they're very important water features and they're very important to the quality of the water that we drink, swim, fish, boat and recreate in."

As in last year's case limiting the EPA's ability to regulate air pollution from power plants, the decision was a major victory for the groups that supported the Sacketts — mining, oil, utilities and, in today's case, agricultural and real estate interests as well.

Discussion Questions

1. What is the Environmental Protection Agency (EPA), and what are its responsibilities? 
   According to its website, the mission of the EPA is to protect human health and the environment.
   
   The EPA works to ensure that:
   - Americans have clean air, land and water;
   - National efforts to reduce environmental risks are based on the best available scientific information;
   - Federal laws protecting human health and the environment are administered and enforced fairly, effectively and as Congress intended;
   - Environmental stewardship is integral to U.S. policies concerning natural resources, human health, economic growth, energy, transportation, agriculture, industry, and international trade, and these factors are similarly considered in establishing environmental policy;
   - All parts of society--communities, individuals, businesses, and state, local and tribal governments--have access to accurate information sufficient to effectively participate in managing human health and environmental risks;
   - Contaminated lands and toxic sites are cleaned up by potentially responsible parties and revitalized; and
   - Chemicals in the marketplace are reviewed for safety.

2. Explain the majority opinion and the dissenting opinion in this case.
   As indicated in the article, the majority’s decision is based on what waters are subject to regulation. 
   
   Writing for the court majority, Justice Samuel Alito said that the navigable waters of the United States regulated by the EPA under the statute do not include many previously regulated wetlands. Rather, he said, the Clean Water Act extends to only streams, oceans, rivers and lakes, and those wetlands with a "continuous surface connection to those bodies."
   
   As also indicated in the article, the dissenting opinion is based on respect for precedent and the role of the U.S. Congress in defining what waters are subject to EPA regulation under the Clean Water Act. Justice Brett Kavanaugh, joined by the court's three liberal members, disputed Alito's reading of the statute, noting that since 1977 when the Clean Water Act was amended to include adjacent wetlands, eight consecutive presidential administrations, Republican and Democratic, have interpreted the law to cover wetlands that the court has now excluded. Kavanaugh said that by narrowing the act to cover only adjoining wetlands, the court's new test will have quote "significant repercussions for water quality and flood control throughout the United States."
   
   In addition to joining Kavanaugh's opinion, the court's progressive justices signed on to a separate opinion by Justice Elena Kagan. Pointing to the air and water pollution cases, she accused the majority of appointing itself instead of Congress as the national policymaker on the environment.

3. Do you agree with the majority opinion or the dissenting opinion in this case? Explain your response.
   This is an opinion question, so student responses may vary. 
   
   Your author agrees with the dissenting opinion in this case based on the exacting rationale of the dissent: 
   a) There is longstanding precedent supporting a broader interpretation of the government’s right to regulate the nation’s wetlands; and 
   b) Government regulation of wetlands is within the province of the legislature (through the provisions of the Clean Water Act) rather than the judiciary (which should only interpret legislative provisions in situations where such legislative provisions are ambiguous and there is insufficient guidance from the legislature regarding what the law really means).