This post was originally published on Legal Planet. Reprinted with permission.
What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign.
A little quick background: The term "navigable waters" traditionally meant water bodies that could be used for transportation. When it passed the Clean Water Act, Congress redefined the term to mean "waters of the United States." Everyone agrees that this term covers at least traditional navigable waters and wetlands on their shores. But what else is covered?
The Supreme Court has issued several rather confusing issues on the subject. The lower courts read the Court's decisions to include wetlands and tributaries that have a "significant nexus" with traditional navigable waters. In one of those decisions, Justice Scalia and three other conservatives favored a much narrower definition, which was more or less tracked in later Trump administration regulation.
The landowners in Sackett take a position that would restrict federal jurisdiction even more than Scalia or Trump. In their brief, they argue for a two-step test:
As the government's brief points out, under this test, a wetland would lose federal protection if someone builds a road or levee across it, or even if a flood leaves a natural berm of soil between the two. Any of those events would eliminate the "continuous surface-water connection." Moreover, the government points out, this test would eliminate federal jurisdiction over non-navigable tributaries of navigable streams. This makes no sense: the Clean Water Act's goal is to prevent pollution, not barriers to navigation.
One thing to watch for: will the Court apply the major questions doctrine, as it did in West Virginia v. EPA? If the Court gives a narrow reading to the West Virginia case, it shouldn't apply the doctrine. Unlike the climate change regulation involved in West Virginia v. EPA, federal jurisdiction over wetlands involves a central provision of the statute and does not involve an unprecedented claim of regulatory authority by the agency. The agency has claimed regulatory authority going beyond the Scalia approach since before the Bush administration. If the Court nonetheless relies on the major question doctrine, it will be expanding the doctrine beyond the West Virginia ruling.
Given the ways in which the landowners' approach goes beyond Scalia and Trump, it may go too far even for this highly conservative group of judges. Still, I wouldn't want to put a lot of money on that bet.
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Daniel Farber | August 8, 2022
What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign.
Sophie Loeb | August 4, 2022
On July 27, I had the privilege of testifying at the North Carolina Utilities Commission (NCUC) public hearing regarding the Duke Energy Carbon Plan. The Asheville hearing was one of six forums designated for public witness testimony on the proposed decarbonization plan. In 2019, North Carolina joined 34 other states investing in solar, wind, and other renewable resources when it passed its Clean Energy Power Plan, and, in 2021, when it passed House Bill 951, which commits to a 70 percent carbon reduction by 2030 and carbon neutrality by 2050. When Duke Energy, a major corporation with outsized influence over the state’s decarbonization plan, submitted its proposal to meet those goals, it failed to account for affordability and equity.
Hannah Klaus | August 3, 2022
Last week, the Center for Progressive Reform joined 90 organizations in expressing strong support for the Environmental Justice for All Act in a letter as the bill went before the House Committee on Natural Resources for markup. The coalition, led by Coming Clean, a collaborative of environmental health and environmental justice experts, and the Environmental Justice Health Alliance for Chemical Policy Reform, urged committee members to advance this important legislation to the House floor. The bill, introduced by Reps. Raúl M. Grijalva of Arizona and Donald McEachin of Virginia, is the most significant effort by the federal government to address generations of environmental racism.
James Goodwin | July 27, 2022
The Biden administration’s path forward on climate change -- as the widely deployed metaphor goes -- has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA). If the Biden administration is to successfully navigate that path -- and it must if we are to avert the worst consequences of the climate crisis -- the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
Thomas McGarity, Wendy Wagner | July 25, 2022
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What an existential high to know that they have finally arrived at the pinnacle. We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding of Section 111(a) of the Clean Air Act.
Daniel Farber | July 20, 2022
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses -- in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
Grace DuBois | July 20, 2022
Corporations’ widespread use -- and abuse -- of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration.
Grace DuBois | July 19, 2022
Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more.
Daniel Farber | July 19, 2022
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.