US Supreme Court rules against EPA in wetlands regulation challenge
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[May 26, 2023]
By John Kruzel and Andrew Chung
WASHINGTON (Reuters) -The U.S. Supreme Court on Thursday put another
dent in the regulatory reach of the Environmental Protection Agency,
embracing a stringent new test for declaring wetlands protected under a
landmark federal anti-pollution law in a ruling favoring an Idaho couple
who challenged the agency.
The 9-0 decision authored by conservative Justice Samuel Alito
overturned a lower court's ruling against Chantell and Mike Sackett that
had upheld the EPA's determination that their property near a lake
contained wetlands protected by the Clean Water Act of 1972. The
Sacketts have battled with the EPA for years over their plans to build a
home on the property.
Although the court unanimously sided with the couple, four justices -
including the court's three liberal members and conservative Brett
Kavanaugh - disagreed with the new test announced by the court that was
backed by the five other conservative justices. The four justices said
the test could undermine water quality and flood control in the United
States.
President Joe Biden said in a statement that the ruling upends the legal
framework used for decades to combat water pollution and that his
administration will "use every legal authority we have to protect our
nation's waters."
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"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," Biden said of the ruling.
The ruling marked the latest instance of the court backing a challenge
to the scope of the EPA's ability to regulate in the environmental arena
under existing law. In a 6-3 ruling last June powered by its
conservative justices, it imposed limits on the EPA's authority to issue
sweeping regulations involving greenhouse gas emissions from existing
coal- and gas-fired power plants under a different environmental law,
the Clean Air Act.
The Sacketts in 2004 bought an undeveloped plot of land about 300 feet
(90 meters) from Priest Lake, one of the largest lakes in Idaho, near
the U.S.-Canada border. In 2007, the couple began preparing construction
of a home on it.
But after placing sand and gravel fill on the lot, the EPA issued an
administrative compliance order stating the property contained wetlands
protected by the Clean Water Act and that they needed a permit to build,
which they had failed to obtain.
Alito, writing for the five-member majority, embraced what is called the
"continuous surface connection" test for determining if adjacent
wetlands are covered by the Clean Water Act.
![](http://archives.lincolndailynews.com/2023/May/26/images/ads/current/flossie_sda_PROMGRAD_2023.png)
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The U.S. Supreme Court building is seen
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"In sum, we hold that the (Clean Water Act) extends to only those
wetlands that are 'as a practical matter indistinguishable from
waters of the United States,'" Alito wrote, adding: "The wetlands on
the Sacketts' property are distinguishable from any possibly covered
waters."
The Clean Water Act bars discharging pollutants, including rocks and
sand, into the "waters of the United States," which regulators for
decades have said covers not just navigable waters but adjacent
wetlands like swamps, marshes and berms.
Courts and regulators have been grappling for decades over how much
of a connection with a waterway a property must have in order to
require a permit, with the Supreme Court issuing a ruling in 2006
that led to further uncertainty.
Justice Elena Kagan, joined by fellow liberals Sonia Sotomayor and
Ketanji Brown Jackson, accused the conservative majority of imposing
its own policy preferences to curb the EPA's reach.
Noting that the Clean Water Act was adopted in the 1970s to address
a widespread crisis over water quality nationwide, Kagan said the
majority's decision undermines the clear intent of Congress to
address pollution, with the majority having improperly appointed
itself "as the national decision-maker on environmental policy."
Damien Schiff, a senior attorney at Pacific Legal Foundation who
argued the case for the Sacketts, hailed the decision as a victory
for property rights, saying it "returns the scope of the Clean Water
Act to its original and proper limits."
Biden's administration in December finalized a rule expanding the
definition of waterways that are protected under the Clean Water
Act, in a reversal from former President Donald Trump's era.
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Lower court challenges led to the enforcement of the new rule being
halted in at least 27 states. Biden in April vetoed legislation that
sought to overturn the rule but the Supreme Court's decision could
cast doubt on the lawfulness of some parts of the new regulation.
The environmental advocacy group Earthjustice, which filed an amicus
brief in the Sackett case, said the court's decision "undoes a
half-century of progress generated by the Clean Water Act,"
eliminating protections from almost 90 million acres (36.4 million
hectares) of wetlands.
(Reporting by John Kruzel in Washington, Andrew Chung in New York
and Nate Raymond in Boston; Editing by Will Dunham)
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