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Supreme Court debates narrowing protections in Clean Water Act

The Washington Post logo The Washington Post 10/3/2022 Ann Marimow
Environmentalists gather outside as the Supreme Court on Monday as the justices heard arguments in Sackett vs. EPA, which could limit the scope of the Clean Water Act of 1972. © Jonathan Ernst/Reuters Environmentalists gather outside as the Supreme Court on Monday as the justices heard arguments in Sackett vs. EPA, which could limit the scope of the Clean Water Act of 1972.

The Supreme Court on Monday struggled with how to resolve a high-stakes case that could narrow the government’s power to protect wetlands and waterways, though a majority of justices appeared ready to reject a key argument put forward by an Idaho couple behind the lawsuit.

Several of the court’s conservative justices expressed concern about the unpredictability and broad reach of the landmark Clean Water Act for property owners seeking to develop their land, while the court’s liberals seemed to seek a compromise that would retain the government’s authority to regulate wetlands adjacent to lakes, rivers and other waterways.

The justices agreed in January to look again at the case involving Michael and Chantell Sackett, who previously prevailed at the Supreme Court in their effort to build a home near Priest Lake, one of the state’s largest. The Environmental Protection Agency says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the Clean Water Act.

At issue now is how courts should determine what counts as “waters of the United States,” protected by the nearly 50-year-old environmental law that allows the government to require permits and impose penalties for violations. If the court sides with the Idaho property owners, environmental advocates say about half of all wetlands and roughly 60 percent of streams would no longer be federally protected.

“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett M. Kavanaugh said during the nearly two-hour argument on the opening day of the court’s term.

The case comes after the court’s conservative majority last term restricted the EPA’s authority to curb emissions from power plants.

Supreme Court, dogged by questions of legitimacy, is ready to resume

The Idaho couple are represented by the conservative Pacific Legal Foundation and backed by a long list of business organizations, home builders and agricultural groups that say the government’s regulations are muddled, time-consuming and costly to follow.

Justices Neil M. Gorsuch and Samuel A. Alito Jr. expressed the most skepticism about how broadly the government defines wetlands subject to regulation, offering pointed questions for the government’s lawyer, Brian H. Fletcher.

Gorsuch asked, “How does any reasonable person know … whether or not their land” is covered? Is the property subject to regulation if it is located three miles or two miles from waters subject to federal jurisdiction, he pressed Fletcher.

Fletcher responded that there are not “bright-line rules,” but limits and government manuals that explain the process. That answer did not satisfy Gorsuch, who asked, “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”

Justice Ketanji Brown Jackson, sitting for her first oral argument, was an active questioner and pushed back against suggestions that the regulations were unfair to the Sacketts or would likely result in criminal liability.

“Shouldn’t they have gathered information about the property prior to purchasing?” Jackson asked the Sacketts’ attorney.

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Fifteen years ago, the couple obtained a local building permit to begin construction on their land about 300 feet from the lake, a plot bounded on two sides by roads and separated by a row of lakefront homes. The EPA put those plans on hold.

The government threatened fines of more than $40,000 per day if the couple did not stop construction. The couple went to court to block the EPA order and now wants the justices to narrow the definition of “waters of the United States” so that their land is not covered by the Clean Water Act.

The Biden administration and environmental groups say narrowing the reach of the law would undermine the government’s ability to protect wetlands that are separated from a river, for instance, by a small dune but still affect a river’s chemical, physical and biological integrity.

Supreme Court allows Idaho couple to challenge EPA on wetlands ruling

In 2012, the justices unanimously sided with the Sacketts, allowing them to immediately challenge the EPA order before the agency took enforcement action. Alito noted in a concurring opinion that the scope of the law is “notoriously unclear” and expressed sympathy for the homeowners.

The justices are now reviewing a 2021 ruling from the U.S. Court of Appeals for the 9th Circuit, which sided with the EPA. The appeals court said the record shows that water from the wetlands, which filter out pollutants, makes its way into the lake via a tributary and creek. The opinion quotes an EPA memo, which found the wetlands “especially important in maintaining the high quality of Priest Lake’s water, fish, and wildlife.”

A key question in the case, Sackett v. Environmental Protection Agency, is how to determine how far from the water’s edge the Clean Water Act applies.

The court failed to reach consensus in a 2006 case, Rapanos v. United States. The 9th Circuit relied on the test put forward by Justice Anthony M. Kennedy, who provided the deciding vote in that case and said the wetland must have a “significant nexus” to regulated waters. Kennedy, now retired, watched the argument from the front row of the courtroom on Monday.

The Sacketts’ attorney Damien M. Schiff asked the court to embrace the narrow interpretation proposed by Justice Antonin Scalia, the late conservative. Scalia’s definition limits regulation to wetlands with a direct “continuous surface connection” to “navigable waters.”

Much of the discussion Monday centered on the definition of “adjacent.” The court’s three liberal justices along with Kavanaugh, Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett seemed to disagree with the Sacketts’ argument that only wetlands physically touching regulated waterways could be considered “adjacent wetlands” covered by the Clean Water Act.

Schiff said a wetland can be regulated only “to the extent that it blends into and thus becomes indistinguishable from an abutting water” and that the physical connection is essential.

“I’m not sure that’s right,” Roberts said. “You would readily say that a train station is adjacent to the tracks even though it’s not touching the tracks.”

Kavanaugh noted that presidents in both political parties had consistently interpreted the law to give the government jurisdiction over wetlands separated from water by dunes, berms and other barriers.

“Why did seven straight administrations not agree with you?” he asked Schiff.

Even as a majority of justices seemed to reject a central element of the Sacketts’ argument, the court could still craft a test that scales back the scope of the EPA’s power.

Justices Elena Kagan and Sonia Sotomayor, two of the court’s liberals, pressed lawyers on both sides about the possibility of a new test for figuring out which wetlands are covered.

“As you can probably tell, some of my colleagues are dubious that this is a precise enough definition of adjacency to survive,” Sotomayor told the government’s lawyer. “Is there another test that could be more precise and less open-ended?”

By the end of the year, the Biden administration is expected to issue new rules that Fletcher told the court will “provide greater clarity to the regulated public on all parts of the test.”

Also on Monday

Before arguments began Monday, the court announced that it will take up nine additional cases, including two that could test liability protections for social media companies for content posted by third parties.

The justices declined to review two gun-rights cases involving challenges to a ban on bump stocks enacted during the Trump administration. The ban on the rapid-fire rifle attachments was put in place after the mass shooting in Las Vegas in 2017 that left 58 people dead and hundreds wounded.

The court also left in place a lower court decision allowing a lawsuit to proceed against MyPillow chief executive Mike Lindell. Dominion Voting Systems has accused Lindell of defamation for false claims that the company’s voting machines were manipulated to rig the 2020 election against President Donald Trump.

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