The vast majority of wetlands in the United States — more than 100 million acres — are no longer protected by the Clean Water Act, the Supreme Court ruled yesterday in Sackett v. EPA. Wetlands are critically important to clean drinking water and flood mitigation; they’re also effective at sequestering carbon and a boon to drought resilience, storing water during dry periods. But in a 5-4 vote, the Supreme Court brushed off peer-reviewed science and plain old common sense that you can’t protect the water downstream, which even the majority agreed is covered by the law, if you’re polluting it upstream.
The case was filed by a wealthy Idaho couple, Michael and Chantell Sackett, who were annoyed that they were required to get a special permit from the Environmental Protection Agency to build on their land because of its proximity to Priest Lake. The Sacketts’ land contains wetlands, but because the wetlands are separated from the lake by a road, they argued the permit was unnecessary. It’s almost certain they would have gotten the permit had they applied, but they opted to sue instead. The court took the Sacketts’ case as an opportunity to open up a broader discussion about what exactly the Clean Water Act is meant to protect, changing the law completely and removing protections from any wetland not immediately connected to a body of water.
Even Justice Brett Kavanaugh, who broke with his conservative colleagues, accused the majority of having effectively “rewritten” the Clean Water Act, which was originally passed in 1972 and updated in 1977.
“Since 1977, when Congress explicitly included ‘adjacent’ wetlands within the act’s coverage, the Army Corps has adopted a variety of interpretations of its authority over those wetlands — some more expansive and others less expansive,” Kavanaugh wrote. “But throughout those 45 years and across all eight presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.”
In the majority opinion, written by Justice Samuel Alito, the court applied a new interpretation of the word “adjacent,” removing protections for any wetlands that are not immediately adjoining lakes, streams, rivers, or oceans, which will have a profound impact on coastal communities around the country. “Wetlands are essential for protecting disadvantaged communities, which are often in low-lying areas, from flooding,” Nick Torrey, senior attorney with the Southern Environmental Law Center, said. Torrey added that wetlands are also critical to the many fishing businesses in the southeast, where he practices. “We have a saying: No wetlands, no seafood,” he said.
“The court’s approach today was to disregard several decades’ worth of precedent interpreting the Clean Water Act,” Sam Sankar, senior vice president at Earthjustice, said. For the past 40 years, the court has interpreted the word “adjacent” to mean what it does to everyone else; in this ruling, five justices said “well actually” adjacent means adjoining, so if there is anything in between a wetland and the water, that wetland doesn’t need to be protected.
It’s not a decision underpinned by science, but rather a legal invention known as the “clear statement rule,” a term the justices use when they want to assert their power to ignore Congress’s wishes and interpret the law solely as written. “The court is increasingly using the clear statement rule to narrow laws written years ago by Congresses that sought to create environmental protections like the Clean Water Act,” Sankar said.
In her dissent, Justice Elena Kagan wrote that the majority used the clear statement rule as a “thumb on the scale for property owners — no matter that the Clean Water Act is all about stopping property owners from polluting.” Referring to conservative justices’ reliance on the rule to weaken environmental regulations, Kagan added, “These pop-up ‘clear statement’ rules give the court a way to cabin the anti-pollution actions Congress thought appropriate by appointing itself as the national decision-maker on environmental policy.”
The clear statement rule is a close cousin of the “major questions doctrine,” another bit of legalcraft that the court has increasingly used to gut regulations on industry. “The Supreme Court maybe invoked it only five times in its whole history before 2021, in cases that were actually quite exceptional,” Richard Revesz, dean emeritus at New York University School of Law and administrator of information and regulatory affairs at the U.S. Office of Management and Budget, said. “But in the last couple of years, it’s a doctrine that’s been invoked promiscuously by opponents of regulation and the court has shown great interest in embracing it. It basically says if an agency decision is going to have vast economic or political significance, it needs to be authorized explicitly by Congress.”
The court invoked the major questions doctrine last year in West Virginia v. EPA to curtail the EPA’s ability to regulate greenhouse gas emissions from power plants. Now in Sackett v. EPA, it has invoked the clear statement rule to apply a narrower interpretation of the Clean Water Act than Congress intended. It’s an interpretation that benefits not only the wealthy couple who brought the case, but also polluting industries. “Mining, oil and gas, development, anyone that pollutes, and a whole lot of them joined or sent in separate briefs in support of the Sacketts,” Jon Devine, director of federal water policy for the Natural Resources Defense Council, said.
Organizations representing industries ranging from animal and industrial agriculture to mining, timber, residential development, and fossil fuel filed briefs in support of the Sacketts. Dark-money-funded anti-regulatory organizations like the Cato Institute, Americans for Prosperity, the U.S. Chamber of Commerce, and the Atlantic Legal Foundation also weighed in on the couple’s behalf. Supporters of the case cheered the ruling as a “win for property owners.” The Sacketts were represented by the libertarian law firm Pacific Legal Foundation, which counts the Koch-funded Donors Capital Fund as well as Searle Freedom Trust, Exxon Mobil, and the Sarah Scaife Foundation among its donors.
According to Sankar, the ruling represents an end run around the legislative process; these interests have been trying to weaken the Clean Water Act for years. “This ruling is the result of a decades-long push by many of these industries,” he said. “They couldn’t cut back on the Clean Water Act by persuading Congress. They tried and failed. … But they succeeded in building a judiciary willing to take this kind of action to rewrite the laws when they’re not able to do so legislatively. What the court has done is rewrite the law in an extraordinarily aggressive way, going beyond even what the Trump administration would have done.”
The Trump administration’s proposed “Waters of the United States” rule would have stripped protection from about half as many wetlands as the Supreme Court’s Sackett ruling did.
In the wake of the decision, environmental advocates are calling on Congress to make explicit that these wetlands are covered by the Clean Water Act. “The court has spoken and now we need to look at ways to restore these protections,” Jim Murphy, director of legal advocacy for the National Wildlife Federation, said. “The primary way is to go back to Congress and have them make clear through legislation that these protections are in place as they were intended to be.”
Murphy said that shouldn’t be a hard sell, as clean water tends to be popular with voters. “Seventy-five percent or so of Americans support strengthening the Clean Water Act across the board,” he said.
States can also act to safeguard wetlands within their borders, thus protecting clean drinking water and improving flood protection for residents. “States are already authorized by federal law to protect more than the limited number of wetlands that the Supreme Court now allows,” Devine said. But nearly half of U.S. states have opted instead to follow the Clean Water Act, so wetlands that are no longer protected due to the Sackett ruling are not protected by those state governments either. Those laws can be changed, but it will take time. “We’re going to need to engage in that fight,” Devine said. “We can’t take as acceptable the gross loss that this opinion would allow.”