This was originally published on Legal Planet. Reprinted with permission.
It’s no wonder that one EPA staffer’s reaction to last year’s Supreme Court wetlands ruling was a single word: “Heartbroken.” In 2023, the Supreme Court ended 50 years of broad federal protection of wetlands in Sackett v. United States. It is only when you look back at the history of federal wetlands regulation that you realize just how radical and destructive this decision was. For instance, under the Court’s reasoning, a Reagan administration regulation would be considered a blatant environmentalist overreach.
Here’s a timeline of the major events.
1972
Congress passes the Clean Water Act, which requires a federal permit for filling or dredging in “navigable waters,” defined as the “waters of the United States.”
1977
The Army Corps of Engineers defines navigable waters to include “isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters … the destruction of which could affect interstate commerce.” A footnote explains that this category includes “all other waters of the United States that could be regulated under the federal government’s Constitutional powers to regulate and protect interstate commerce.”
1985
In U.S. v. Riverside Bayview Homes, the Supreme Court upheld federal jurisdiction over wetlands that are adjacent to water bodies.
1986
The Reagan administration codifies previous policies to cover all waters “such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” plus adjacent wetlands.
1988
President George H.W. Bush promises “no net loss of wetlands.”
2001
In SWANCC v. U.S., the Supreme Court strikes down a rule that covers any wetland or pond used by migratory birds.
2006
In Rapanos v. U.S., Justice Scalia writes for four justices to advocate a very restrictive test of federal jurisdiction. Five justices (four dissenters plus Justice Kennedy) support the “significant nexus” test, which the lower courts generally view as binding law.
2015
The Obama administration issues the Waters of the United States (WOTUS rule), which ignites a major political dispute and becomes mired in litigation.
2020
The Trump administration adopts a rule largely following Scalia’s view of the statute, but with some concessions to the Kennedy test.
2022
The Biden administration adopts a new version of the WOTUS rule, which requires that a wetland be close enough to a water body that it can significantly influence water quantity or quality, generally meaning that they are within a few hundred feet.
2023
In Sackett v. EPA, the Court adopts the restrictive Scalia test, which had been rejected by a majority of justices in the 2006 Rapanos case. The ruling guts federal protection for wetlands and many small streams, especially in the West. It limits federal authority to a fraction of U.S. wetlands.
Showing 2,828 results
Daniel Farber | February 8, 2024
In 2023, the Supreme Court ended 50 years of broad federal protection of wetlands in Sackett v. United States. It is only when you look back at the history of federal wetlands regulation that you realize just how radical and destructive this decision was.
Daniel Farber | February 2, 2024
Later this month, the U.S. Supreme Court will hear oral argument about whether to stay a plan issued by the U.S. Environmental Protection Agency (EPA) to limit upwind states from creating ozone pollution that impacts other states. As I wrote before the Court decided to hear the arguments, the issues here seem less than earthshaking, and for that matter, less than urgent. It was puzzling to me why after many weeks, the Court was still sitting on the “emergency” requests of the upwind states to be rescued from the EPA plan. Given that the Court seems to think the issues are important enough to justify oral argument, however, it’s worth examining what seems to be bothering the Court about implementing the EPA plan.
Richard Pierce, Jr. | February 1, 2024
I find the Center for Progressive Reform’s pursuit of environmental justice inherently appealing, but this work raises provocative questions: Should U.S.-focused groups like the Center and policymakers pursue an environmental justice mission that does not account for potentially negative trade-offs in developing countries? Or, are there ways to account for those trade-offs to ensure environmental justice work and efforts to address climate change benefit people across the globe?
James Goodwin, Will Dobbs-Allsopp | January 31, 2024
What if we told you that every day, tens of millions of Americans are exposed to something that contributes to neurological disease, depression, and an increased risk of heart disease and stroke? What if we also told you that in causing these health harms, it was disproportionately affecting low-wealth communities and communities of color? What is this dangerous “something”? It’s excessive noise. And, as it happens, more than 50 years ago, Congress recognized the seriousness of the harms that excessive noise causes and, as a result, passed a law directing the EPA to take aggressive action against it.
Robin Kundis Craig | January 11, 2024
Fisheries regulation might seem to be unusual grounds for the U.S. Supreme Court to shift power away from federal agencies. But that is what the court seems poised to do in the combined cases of Loper Bright Enterprises vs. Raimondo and Relentless Inc. vs. Department of Commerce.
Daniel Farber | January 10, 2024
State climate policy is a big deal. State governments began cutting emissions at a time when the federal government was essentially doing nothing about climate change. Since then, more states have become involved. Part II of this post covers state climate action from New Jersey to Washington State during the second half of 2023, as well as multi-state efforts.
Daniel Farber | January 10, 2024
State climate policy is a big deal. State governments began cutting emissions at a time when the federal government was essentially doing nothing about climate change. Since then, more states have become involved, and state policies have become more aggressive. It’s not for nothing that 2023 was called a banner year for state climate action. The state developments in just the second half of the year make up an impressive list. Part I of this post covers state climate action from California to Michigan.
Dan Rohlf, Zygmunt Plater | January 2, 2024
In the history of the Endangered Species Act (ESA) — which President Richard Nixon signed just over 50 years ago on December 28, 1973 — no creature looms larger than the snail darter. As some lawmakers today seek to weaken the law’s promise to avoid human-caused extinctions, the long-ago battle over this little fish points […]
Daniel Farber | December 11, 2023
The steel industry applied for U.S. Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago. Since then ... crickets. No doubt you’re on the edge of your seat, wondering about the impending crisis facing the industry and the earthshaking legal issue in the case. And maybe also wondering why this is the first you’ve heard about it.