Justices limit EPA's power to address water pollution
WASHINGTON – The Supreme Court on Thursday curtailed the Environmental Protection Agency's authority to police millions of acres of wetlands, delivering another setback to the agency's ability to combat pollution.
Writing for five justices, Justice Samuel Alito said that the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have "a continuous surface connection" to those waters.
The decision was a second major blow to the EPA's authority and to the power of administrative agencies generally. Last year, the court limited the EPA's power to address climate change under the Clean Air Act.
Experts in environmental law said the decision would leave many wetlands subject to pollution without penalty, sharply undercutting the EPA's authority to protect them under the Clean Water Act.
"This is a really disastrous outcome for wetlands, which have become absolutely vital for biodiversity preservation and flood control," said Patrick Parenteau, a professor at Vermont Law School.
Kevin Minoli, who worked as a senior EPA lawyer from the Clinton through the Trump administrations, said the decision would have enormous practical consequences and estimated that it would affect more than half the nation's wetlands.
"If you're in an area with a lot of wetlands but those wetlands are not directly connected to a continuously flowing water body, then those wetlands are no longer protected by the Clean Water Act," he said.
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 because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement about a new test the majority established to determine which wet lands are covered by the law.
Justice Brett Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the federal government's ability to address pollution and flooding.
"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."
In a second concurring opinion, Justice Elena Kagan, referring to the court's decision in June to curtail the EPA's ability to restrict powerplant emissions, criticized the majority's interpretation of the law.
"There," she wrote, "the majority's non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA 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 ruling was also another example of the court's skepticism of the authority of administrative agencies, said Jonathan H. Adler, a law professor at Case Western Reserve University. "The current court," he said, "is clearly unwilling to defer to an agency about the scope of that agency's own power."
President Biden expressed dismay with the ruling and said his administration would consider next steps. "It puts our nation's wetlands – and the rivers, streams, lakes and ponds connected to them – at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers and businesses rely on," he said in a statement.
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, Alito 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 EPA 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."