Supreme Court Sharply Limits Federal Government's Ability to Police Pollution Into Certain Wetlands

The Supreme Court on Thursday sharply limited the federal government’s authority to police water pollution (PDF) into certain wetlands, the second decision in as many years in which a conservative majority narrowed the reach of environmental regulations.

The outcome could threaten efforts to control flooding on the Mississippi River and protect the Chesapeake Bay, among many projects, wrote Justice Brett Kavanaugh, breaking with the other five conservatives. Environmental advocates said the decision would strip protections from tens of millions of acres of wetlands.

The justices boosted property rights over concerns about clean water in a ruling in favor of an Idaho couple who sought to build a house near Priest Lake in the state’s panhandle. Chantell and Michael Sackett objected when federal officials identified a soggy portion of the property as a wetlands that required them to get a permit before filling it with rocks and soil.

By a 5–4 vote, the court said in an opinion by Justice Samuel Alito that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger, regulated bodies of water. There is no such connection on the Sacketts’ property.

California water officials say they are disappointed with the decision, but that the ruling doesn’t block California’s stronger environmental rules.

The Supreme Court ruled that the Clean Water Act only applies to wetlands with aboveground flow to main-stem rivers and other big bodies of water. California passed stronger environmental rules in 2019 protecting marshes that sit behind levees, dikes and dunes.

While the state is confident in its rules, Eric Buescher with Baykeeper says state law doesn’t require industry to report wetland pollution. “That self-identification is vital to communities knowing who is polluting or where pollution is occurring,” said Buescher.

The Clean Water Act also allowed for citizens to bring lawsuits, whereas state laws do not.

President Joe Biden said the court’s decision defies science and undermines a law that has been used for a half-century to make American waters cleaner.

“The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards. 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 in a statement.

The court jettisoned the 17-year-old opinion by their former colleague, Anthony Kennedy, allowing regulation of what can be discharged into wetlands that could affect the health of the larger waterways.

Kennedy’s opinion covering wetlands that have a “significant nexus” to larger bodies of water had been the standard for evaluating whether permits were required for discharges under the 1972 landmark environmental law. Opponents had objected that the standard was vague and unworkable.

Reacting to the decision, Manish Bapna, chief executive of the Natural Resources Defense Council, called on Congress to amend the Clean Water Act to restore wetlands protections and on states to strengthen their own laws.

“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price,” Bapna said in a statement.

The outcome almost certainly will affect ongoing court battles over new water regulations, including for wetlands, that the Biden administration put in place in December. Two federal judges have temporarily blocked those rules from being enforced in 26 states.

Congress voted in March to overturn the administration’s new water rule, and, even though President Joe Biden vetoed the measure, the prospect of legislative action to restore wetlands protections anytime soon is remote.

The head of the Environmental Protection Agency, Michael S. Regan, credited the Clean Water Act with leading to “transformational progress” in cleaning up the nation’s waterways. “I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” Regan said in a statement.

Damien Schiff, who represented the Sacketts at the Supreme Court, said the decision appropriately narrowed the reach of the law. “Courts now have a clear measuring stick for fairness and consistency by federal regulators. Today’s ruling is a profound win for property rights and the constitutional separation of powers,” Schiff said in a statement issued by the property rights-focused Pacific Legal Foundation.

In Thursday’s ruling, all nine justices agreed that the wetlands on the Sacketts’ property are not covered by the act.

But only five justices joined in the opinion that imposed a new test for evaluating when wetlands are covered by the Clean Water Act. Chief Justice John Roberts, Justice Clarence Thomas and Alito would have adopted the narrower standard in 2006, in the last big wetlands case at the Supreme Court. They were joined Thursday by Justices Neil Gorsuch and Amy Coney Barrett.

Kavanaugh and the court’s three liberal justices charged that their colleagues had rewritten that law.

Kavanaugh wrote that the court’s “new and overly narrow test may leave long-regulated and long-accepted-to-be regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.”

Justice Elena Kagan wrote that the majority’s rewriting of the act was “an effort to cabin the anti-pollution actions Congress thought appropriate.” Kagan referenced last year’s decision limiting the regulation of greenhouse gas emissions under the Clean Air Act.

In both cases, she noted, the court had appointed “itself as the national decision-maker on environmental policy.” Kagan was joined in what she wrote by her liberal colleagues Sonia Sotomayor and Ketanji Brown Jackson.

The Sacketts paid $23,000 for a 0.63-acre lot near Priest Lake in 2005 and started building a three-bedroom home two years later.

They had filled part of the property, described in an appellate ruling as a “soggy residential lot,” with rocks and soil in preparation for construction, when officials with the EPA showed up and ordered a halt in the work.

They also won an earlier round in their legal fight at the Supreme Court.

The federal appeals court in San Francisco upheld the EPA’s determination in 2021, finding that part of the property, 300 feet from the lake and 30 feet from an unnamed waterway that flows into the lake, was wetlands.

The Sacketts’ own consultant had similarly advised them years ago that their property contained wetlands.

This story includes reporting by KQED’s Kevin Stark.