President Joe Biden’s efforts to restore protections to millions of acres of wetlands were dealt a big setback by the Supreme Court on Thursday, as the Court ruled in favour of numerous important industries.
The conservative majority’s decision severely restricting federal control over wetlands is good news for companies like homebuilding and oil and gas that need Clean Water Act permits to destroy federally protected wetlands. For decades, representatives in those sectors have tried to restrict the law’s coverage.
Less than a year after issuing a controversial rule limiting the EPA’s capacity to regulate climate warming emissions, liberal Justice Elena Kagan bemoaned on Thursday that the court has installed “itself as the national decision-maker on environmental policy.”
The result in Sackett v. EPA, which was decided by a 5-4 vote, establishes a much more restricted approach than has been utilised for more than fifty years to determine which wetlands are covered by the 1972 legislation. Only wetlands that have a continuous surface water connection to bigger streams, lakes, and rivers would qualify for federal protections under the majority’s definition.
Only wetlands that are “indistinguishable” from those bigger waters should be covered, said Justice Samuel Alito un the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.
Alito argued that wetlands that are not connected to regular navigable channels cannot be included in those waters just because they are close by.
That criteria was rejected by the court’s liberals, who were backed by Justice Brett Kavanaugh, on the grounds that it unfairly excludes large areas of wetlands that are crucial to the Clean Water Act’s mission of protecting the nation’s waters.
Kavanaugh argued in his concurring opinion that the Court’s “atextual test” (rewriting “adjacent” to mean “adjoining”) would have “real world consequences for the waters of the United States” and “generate regulatory uncertainty.”
Environmental Protection Agency Administrator Michael Regan, whose agency earlier this year finalised a rule intended to establish a broad interpretation of the water law, expressed his displeasure with the ruling in a statement.
“As a public health organisation, EPA is dedicated to ensuring that everyone, regardless of race, socioeconomic status, or location, has access to safe drinking water. We will never swerve from that duty,” Regan promised.
Many environmental organisations were quick to voice their disapproval of the judgement, saying it would have far-reaching effects on the federal government’s ability to safeguard the quality of the nation’s waters.
“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands,” said Manish Bapna, president and CEO of the Natural Resources Defence Council. This choice will have devastating consequences. Local communities all around the country will bear the consequences.
The verdict is the most recent development in a contentious debate over how far upstream federal water protections should extend. Since the passage of the hazily written Clean Water Act, industry interests, environmentalists, and the federal government have been engaged in a legal fight.
The topic was recently considered by the Supreme Court in 2006’s Rapanos v. United States, when the court’s four conservative justices developed a restrictive standard, extending constitutional protections to only “relatively permanent” waters. In his concurring opinion, however, then-Justice Anthony Kennedy developed a different criteria. As each Democratic and Republican administration tried to enforce its preferred policies on the pitch, widespread chaos ensued.
As the Supreme Court has moved to the right in recent years, opponents of expansive federal power have been lobbying to bring the matter back before the court in the hopes of a more definitive conclusion in their favour, which is exactly what happened on Thursday.
The Sacketts’ legal dispute revolves around a small marsh area on their property near Priest Lake, Idaho. For over 15 years, the couple has argued with the Environmental Protection Agency and the Army Corps of Engineers over whether or not the land in question is subject to the Clean Water Act’s permitting obligations.
The Supreme Court concurred unanimously that the couple’s wetland areas were not covered by the Clean Water Act and that the court’s previous approach, established in the case Rapanos v. United States in 2006, was no longer relevant in determining the law’s applicability. This is why the two views from the court’s liberals and Kavanaugh are understood to be concurring opinions.
However, the court’s liberal and conservative members remained deeply divided over the new threshold for federal jurisdiction.
Conservatives, property rights advocates, and industry organisations all lauded Thursday’s verdict as a victory since it limits the federal government’s ability to dictate local land use.
Zippy Duvall, president of the American Farm Bureau Federation, said in a statement that the EPA “clearly overstepped its authority under the Clean Water Act” by preventing private property owners from developing their land despite being far from the nearest navigable water.
The next steps are up to the Biden administration. The rule it just finished finalising in January will have to be revised at the very least to accommodate the new verdict. Less than half of the states presently follow that guideline because of court freezes in the other half.
The Environmental Protection Agency (EPA) has stated that it aims to draught a second regulation this autumn in light of the Supreme Court’s decision in Sackett.
“The Biden-Harris Administration has worked to establish a durable definition of ‘waters of the United States’ that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while also providing the clarity and certainty that farmers, ranchers, and landowners deserve,” Regan said. While the agency reviews the Supreme Court’s judgement and decides what to do next, it will continue to be guided by these goals.
