The following post provides detailed analysis of the recent Sackett v. Environmental Protection Agency U.S. Supreme Court decision. It was originally posted to The George Washington Law Review and is cross-posted with permission.
The current Supreme Court is not a friend of the administrative state. A majority of its members seem to take particular umbrage at administration of the regulatory programs created to implement the nation’s foundational federal environmental protection statutes. On the last day of the 2021–2022 term, the Court in West Virginia v. EPA narrowly interpreted the Clean Air Act to bar the federal Environmental Protection Agency (“EPA”) from inducing existing electric power plants that generate power through the combustion of fossil fuels to switch to energy sources that generate fewer of the greenhouse gases that contribute to climate change. The opinion in that case enunciated a strong version of the “major questions doctrine,” which requires an agency to point to clear statutory authorization in order to trigger its regulatory authority to tackle politically and economically important questions. With the Court’s latest decision in Sackett v. EPA, the Court has made it clear that it is willing and anxious to constrain environmental regulatory authority even in the face of such authorization.
The task before the Court in Sackett was to identify “the proper test for determining whether wetlands are ‘waters of the United States’” for purposes of the federal Clean Water Act (“CWA”). The enunciation of that test is central to determining the scope of two important CWA permit programs. The stated purpose of the CWA is the restoration and maintenance of “the chemical, physical, and biological integrity of the Nation’s waters.” To achieve that purpose, the statute prohibits the discharge of any pollutant, but allows discharges that comply with one of two kinds of permits. Under the National Pollutant Discharge Elimination System (“NPDES”) permit program, EPA or authorized states may issue permits that limit discharges from industrial or municipal sources. Compliance with such a permit shields the discharger from enforcement of the no discharge prohibition against it. The statute also authorizes the deposit of dredged or fill material associated with activities such as channel dredging or construction if it complies with a permit issued by the U.S. Army Corps of Engineers (subject to EPA oversight). Compliance with such a permit also creates an enforcement shield.
The scope of the statutory prohibition on discharges, and thus of the applicability of the two permit programs, depends on the definition of a “discharge of a pollutant.” The CWA defines that term as “any addition of any pollutant to navigable waters from any point source.” It also defines “navigable waters” as “the waters of the United States,” but it does not define the latter term.
Before Sackett, the Supreme Court had addressed the meaning of the term “waters of the United States” in three cases. All three involved the dredge or fill permit program, not the NPDES program. In the first case, United States v. Riverside Bayview Homes, Inc., the Court deferred to the view of EPA and the Corps that wetlands “adjacent” to certain categories of navigable waters (which extend beyond navigable in fact waters) qualify as waters of the United States. It rejected the simplistic position that wetlands cannot qualify as waters of the United States because, after all, they are lands, not waters. In the second case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, the Court held the Corps exceeded its authority by treating isolated, intrastate, abandoned, water-filled sand and gravel mining pits as waters of the United States simply because migratory birds used them as habitat.
In the third case, Rapanos v. United States, the Justices wrote four different opinions, none of which garnered a majority of the votes. Justice Scalia, joined by three other Justices, wrote a plurality opinion limiting CWA jurisdiction to relatively permanent, standing, or continuously flowing bodies of water, but excluding waters or wetlands with merely intermittent or ephemeral flow. Three Justices joined Justice Stevens’s dissent, which interpreted “waters of the United States” more expansively to include wetlands adjacent to tributaries of traditionally navigable waters. Justice Kennedy wrote a solo concurrence whose test for CWA coverage was whether a water or wetland possesses a “significant nexus” with traditional navigable waters. That nexus would exist if coverage of particular wetlands were needed to achieve the statutory goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters.
Following Rapanos, the lower courts, with almost no exceptions, treated Justice Kennedy’s significant nexus test as controlling, providing more expansive statutory coverage than Justice Scalia’s approach would have done. Meanwhile, the Bush, Obama, Trump, and Biden administrations all issued regulations reflecting their divergent takes on the scope of the CWA’s coverage, including its applicability to wetlands. Suffice it to say that the dredge and fill permit program was not exactly a model of clarity or stability in light of these shifting administrative and judicial sands.
Judicial Antipathy to Clean Water Regulations
The Sackett case, which also involved the dredge and fill permit program, presented the Supreme Court with a fourth opportunity to interpret the meaning of “waters of the United States.” The Sacketts purchased land in Idaho on which they intended to build a home. When they began to fill their property without a dredge and fill permit, EPA issued an administrative compliance order requiring them to restore their property to its former condition. The Sacketts challenged that determination. After a preliminary trip to the Supreme Court to resolve a jurisdictional issue, the Sacketts’ case returned to the Court of Appeals for the Ninth Circuit. Applying Justice Kennedy’s significant nexus test, it held that the wetlands on the Sacketts’ property qualified as “water of the United States.” The Supreme Court took the case for a second time and reversed.
Justice Alito, writing for a 5–4 majority, did little to disguise his antipathy to the CWA’s regulatory program. He called it a “potent weapon” capable of imposing “crushing consequences” on unsuspecting property owners caught in the regulatory web stemming from its “capacious definition of ‘pollutant,’ its low mens rea, and its severe penalties.” According to Justice Alito, the permitting process can be “arduous, expensive, and long,” and “take years and cost an exorbitant amount of money.” The statute puts “a staggering array of landowners . . . at risk of criminal prosecution or onerous civil penalties.”
With that flurry of disparaging adjectives out of the way, Justice Alito got down to the business of “consider[ing] the extent of the CWA’s geographical reach.” He focused on the statutory appearance of the word “navigable,” which “signals that the definition principally refers to bodies of navigable waters like rivers, lakes and oceans.” The term also showed that Congress “was focused on ‘its traditional jurisdiction over waters that were or had been made navigable in fact or which could reasonably be so made.’” The majority acknowledged that statutory context made it clear that “some wetlands qualify as ‘waters of the United States.’” For one thing, when Congress amended the CWA in 1977, it added a provision excluding from the permissible scope of state dredge and fill permitting programs certain interstate waters, “including wetlands adjacent thereto.” The question, therefore, was which wetlands the statute covers.
After purporting to “harmonize” the 1977 provision with the term “waters of the United States,” the majority concluded that for wetlands to be subject to regulation, they “must qualify as ‘waters of the United States’ in their own right. In other words, they must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” Further, notwithstanding the dictionary definition of “adjacent” as either contiguous or near, the majority asserted that “[w]etlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.” Thus, citing Justice Scalia’s plurality opinion in Rapanos, the Court held that “the CWA extends only to those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’” Wetlands only qualify as such if (1) the adjacent body of water constitutes “waters of the United States” because it is “a relatively permanent body of water connected to traditional navigable waters,” and if (2) “the wetland has a continuous surface connection with the water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Serious Ecological Consequences
The majority flatly declared that Justice Kennedy’s significant nexus test “is inconsistent with the text and structure of the CWA,” which never mentions the term. Then, just as it had applied a clear statement rule in the form of the major questions doctrine in West Virginia, the Court invoked two reasons for requiring that EPA provide “clear evidence that it is authorized to regulate in the manner it proposes.” First, an agency must point to “[e]xceedingly clear language” if its regulatory efforts would alter the traditional balance of regulatory power between the federal government and the states over private property. The significant nexus test’s “overly broad interpretation of the CWA’s reach would impinge” on traditional state authority to regulate land and water use. Second, especial clarity is demanded when a statute subjects violators to criminal penalties. The significant nexus test “gives rise to serious vagueness concerns in light of the CWA’s criminal penalties.” Absent a clear statutory endorsement of the significant nexus test, EPA was unable to overcome the presumption triggered by these two concerns that it lacks the authority it claimed to regulate noncontiguous wetlands.
Finally, EPA argued that the majority’s approach—which was Justice Scalia’s approach in Rapanos—would create serious adverse ecological consequences. The majority responded that “the CWA does not define the EPA’s jurisdiction based on ecological importance, and we cannot redraw the Act’s allocation of authority.” That blithe response is belied by the CWA’s very first section, which describes the statute’s objective as “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Justice Kagan wrote an opinion concurring in the judgment, which was joined by Justices Sotomayor and Jackson, as did Justice Kavanaugh, whose opinion was joined by all three Justices who signed onto Justice Kagan’s opinion. All four Justices agreed that the Sacketts’s property did not contain jurisdictional wetlands, and all agreed that the significant nexus test was erroneous. But none otherwise agreed with virtually any of the majority’s reasoning.
Justice Kagan chastised the majority for contorting the statutory text, which provides for coverage of wetlands that are “adjacent” to covered waters, not just wetlands that adjoin covered waters. She also took issue with the majority’s “judicially manufactured clear-statement rule.” Justice Kavanaugh also charged the majority with substituting “adjoining” wetlands as the test of statutory coverage for the actual text, which refers to “adjacent” wetlands. As a result, the majority’s test improperly excluded coverage over wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or similar geographical feature. Justice Kavanaugh pointed out that EPA and the Corps of Engineers had interpreted the CWA to allow regulation of these “adjacent” wetlands for forty-five years, spanning eight presidential administrations. That included the administration of Donald Trump, whose 2020 regulation significantly narrowed the scope of CWA jurisdiction, but not as much as the Sackett opinion does.
The divergent views of the majority and the four concurring Justices are not merely a matter of linguistic interest. Justice Kavanaugh opined that “[t]he court’s rewriting of ‘adjacent’ to mean ‘adjoining’ will matter a great deal in the real world,” with likely adverse consequences for the quality of water bodies such as the Mississippi River and the Chesapeake Bay. The Trump administration itself explained that its 2020 regulation, which a federal court invalidated, would have reduced coverage over more than fifty percent of the nation’s wetlands. As Justice Kavanaugh pointed out, the majority’s “adjoining wetlands” test is in some respects, at least, even narrower than the Trump rule. Some environmental groups have claimed that the new test would eliminate statutory jurisdiction over millions of acres of wetlands. Because of the hydrological interconnectedness of many adjacent wetlands with surface water bodies, those waters will suffer a decline in water quality, too.
But Sackett’s implications extend beyond the significantly shrunken scope of the CWA’s dredge and fill permit program. The same jurisdictional test that governs the scope of that program applies to the NPDES permit program, which also covers “waters of the United States.” As a result, unpermitted pollutant discharges, including discharges of chemical pollutants from industrial facilities and conventional pollutants such as fecal coliform and suspended solids from municipal waste treatment facilities, into adjacent wetlands that previously violated the statutory no discharge prohibition may no longer do so.
There is more. Discharges that used to be but are no longer subject to the CWA’s dual permit programs often triggered the regulatory requirements of the Endangered Species Act and the National Environmental Policy Act. These statutes provide important mechanisms for avoiding jeopardy to animal and plant species listed as endangered or threatened or avoiding destruction of those species’ critical habitat, and for identifying ways to eliminate or mitigate the adverse environmental consequences of federal agency actions. If the CWA’s permit programs no longer apply to these actions, there will be no federal action to bring these protective mechanisms into play.
The majority opinion in Sackett also bodes ill for federal environmental regulatory programs of all stripes. Its requirement that regulators point to “exceedingly clear language” before altering the balance of federal and state regulatory power “over private property” provides a basis for courts to narrowly construe any grant of federal regulatory authority whose exercise might affect the property values of regulated entities. Finally, Justice Thomas wrote a concurring opinion, joined by Justice Gorsuch, in which he appeared to argue that the Commerce Clause of the U.S. Constitution only authorizes regulation of pollutant discharges that interfere with the navigability of interstate waters. Even more broadly, his interpretation seems to preclude any environmental regulation that is based solely on the effects of the regulated activity on interstate commerce. Those effects provide the principal underpinning of virtually all federal environmental regulation.
Sackett’s narrowing of CWA coverage does not preclude states from adopting more expansive controls over activities that affect the quality of the wetlands that are newly excluded from the CWA’s coverage. Some states will surely regulate more extensively than EPA and the Army Corps are now allowed to do. Many others will not, however. Indeed, statutes in a significant number of states prohibit environmental regulation that is more stringent than federal regulation. In those states, the safety net that state law theoretically provides will not exist.
Last year’s West Virginia decision took a chunk out of EPA’s regulatory authority under the Clean Air Act. Sackett significantly narrows the scope of the nation’s most important legislative vehicle for protecting water quality. The excisions the Court has made to the two most important federal pollution control laws make it clear that no environmental legislation is safe in the hands of this Court.
For the full footnoted version of this analysis, please visit the original post on The George Washington Law Review.