Editor’s note: Professor Buzbee led a friend of court brief in Sackett on behalf of 167 members of Congress in support of retaining longstanding protections of the Clean Water Act.
This morning, the U.S. Supreme Court issued its much-awaited decision in Sackett v. Environmental Protection Agency (EPA). This is the Supreme Court’s fourth foray over several decades into what count as protected “waters of the United States” (WOTUS) under the Clean Water Act. This language provides the key jurisdictional hook for all important federal powers under the Act.
Today, the Supreme Court’s emboldened anti-regulatory supermajority made major new law and unsettled much in reaching its environmentally harmful result. Justice Samuel Alito, writing for the majority, lost his usual ally, Justice Brett Kavanaugh, but still commanded a majority. Kavanaugh (joined by Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson), concurred in the judgment but blasted the Court’s statutory interpretation. Justice Elena Kagan (joined by Justices Sonia Sotomayor and Ketanji Brown Jackson) engaged in a broader attack on the majority opinion, but also joined the judgment.
Due to sloppiness or perhaps to avoid conceding the legal and environmental destruction left in its wake, the Court’s majority bends the law and dodges any real grappling with the effects of its opinion.
A majority opinion contrary to law and science
The opinion is a major loss for the environment. It again shows how the Roberts Court’s relatively new anti-regulatory majority will find ways to achieve its preferred outcomes, even in the face of strong contrary law. Here the contrary law was of all types: statutory, court precedents, longstanding bipartisan regulatory policies, and regulatory science built on peer-reviewed science regarding types of waters and their functions. And, once again, as in other major recent anti-regulatory cases, the Court pretended that its work was just about words and power and erected new barriers to protective regulation.
The Sackett majority distorts or ignores the actual science and other effects implications of its decision. What changes and harms to the environment and waters will flow from this decision? The majority does not say and nowhere indicates that it cares. Can it find evidence of regulatory abuses in the actual administrative record of this case or past rulemakings that led to the regulations underlying the actions in this case? Not that it identifies. Instead, the majority mainly cites its own opinions and past studies by others and a few cherry-picked snippets of past regulatory discussion by the agencies to justify its own new presumptions against agency powers.
The opinion claims legal disagreement and confusion as part of its justification for its broadly worded opinion and heightened demands for congressional clarity, but the reality is far different. This opinion reflects an emboldened Court that in this case tosses aside much of the Court’s own previous rulings on WOTUS. It clashes with its own Riverside Bayview Homes decision where it upheld protection of wetlands and called for deference to difficult regulatory judgments. It misidentifies alignments and majority views in the 2006 Rapanos case. It can never quite bring itself around to conceding that it is now rejecting — basically overruling — an approach that a numerical majority in Rapanos had embraced for defining why and when waters are protected, namely, the “significant nexus” test articulated by Justice Kennedy and endorsed by four dissenting justices in that case.
It also never admits that the jurisdiction-shrinking test now made the law of the land not only did not command a majority’s support in Rapanos, but also was expressly rejected by a majority of justices as unsound and atextual. The Sackett majority claims legal tumult when, in reality, 45 years of Democratic and Republican administrations embraced largely consistent views about the protection of wetlands, especially the consistent policy that wetlands and other waters remain subject to federal protection even if blocked by natural or human-built barriers like berms, dikes, and levees.
The justices have indeed clashed internally on waters protection, but judicial clashes do not justify unsettling and disregarding statutory choices. It is true that anti-regulatory interest groups, especially homebuilders, some agricultural groups, and property rights-focused litigants, have sought to weaken the Act. But interest groups clashing in the courts is a near-permanent reality. Attacks on regulation and vehement dislike should never be enough to skew legal tests, methods, or sway judges so they disrespect congressionally set policy.
Cutting back protections despite statutory authority
Until today, congressional choices and presidential administrations of both parties had succeeded in upholding the heart of Clean Water Act protections. That is no longer true. The Sackett majority substantially cuts back on protection of America’s precious waters by ignoring much of the Clean Water Act’s actual text, dismisses scientific rationales built on statutorily mandated criteria as mere “policy,” oddly calls science-based assessments of disputed waters problematic and “freewheeling,” and leaves vast swaths of the previously protected waters, especially wetlands, no longer subject to federal protection.
The new basic test is built on the plurality opinion of former Justice Antonin Scalia in the 2006 Rapanos case that a majority of justices had rejected. Wetlands, and perhaps all types of waters, now need to be connected, probably at the surface and perhaps permanently, to larger traditional navigable or navigable-in-fact waters in order to be subject to federal jurisdiction. Wetlands, to be protected, must be “indistinguishable” from larger, clearly jurisdictional traditional navigable waters that the Court identifies as usually meaning “open waters” like “lakes, rivers, and oceans.”
This new test is a huge environmental problem. Wetlands are often valuable precisely because they are not continuously connected to larger navigable-in-fact waters of the sort used by ships or large open lakes or ocean water bodies. Wetlands provide many ecological services, filter pollutants, buffer storm flows, and are often crucial to the health and viability of many species. The Clean Water Act is clear that these are functions meant to be protected, but the Court ignores that language. With a few minor caveats, direct connectedness — “a continuous surface connection” — is now the test for federal wetlands protection. That test is nowhere in the statute. If a disputed water is “nearby” larger waters, that is not good enough.
The decision is also methodologically unsound as a matter of statutory interpretation. This majority opinion had to deal with and basically overcome a lot of contrary express law, especially the Clean Water Act’s express protection of “adjacent wetlands” that was added to the law in 1977 in apparent endorsement of earlier regulatory policies. The Court also gives virtually no weight to the Act’s express goals of protecting waters’ “integrity,” its ubiquitous focus on protecting water quality, its anti-pollution mandates, and its express strong presumptions against filling in any waters or polluting them without a permit.
How the majority reached its conclusions
So how did it get there? As in 2022’s climate policy blockbuster, West Virginia v. EPA, the majority rolls out a slew of anti-regulatory, anti-federal interpretive presumptions that, it says, mean Congress must far more clearly state its intent to protect waters that go further than core traditional navigable waters of the sort generally used by ships and for interstate commerce.
Why? The case is built substantially on the majority justices’ animus against regulation. It adds some new firepower to its growing anti-regulatory arsenal of presumptions and skeptical reviewing frames.
The Court talks about the statute’s broad language and federal powers it could unleash, the “staggering” areas that could be subject to federal protection, oddly including mention of the risk of regulation of mere “puddles” and “swimming pools,” even though EPA and the Army Corps had expressly declined to regulate them. The Court also justifies its demand for clearer statutory empowerment due to impingements on state and local land use regulatory authority, punitive provisions in the Act and possible “crushing” liabilities, difficult line-drawing in assessing putative waters’ status, and even the need to protect “a staggering array of landowners” who would otherwise be “at risk.”
But as the Kagan and Kavanaugh opinions note, the majority basically takes the word “adjacent” and on its own changes it to mean “adjoining” in the sense of “connected.” That other provisions in the Act distinguish between “adjacent” and “adjoining” waters isn’t enough for the majority. Normally such nearby nuanced differences in word usage in the same statute lead to judicial adjustment and respect for those differences. (This kind of respect for textual nuance and differences was a mainstay of the late Justice Scalia’s textualist methodology.) Not here. The majority just sidesteps any real discussion of water quality and anti-pollution goals and criteria found throughout the statute’s text. As Justice Kagan notes, the majority once again has shown itself ready to disrespect fundamental tenets of textualist modes of statutory interpretation if necessary to achieve preferred policy results.
One puzzling and disappointing element of this case is the following: all of the justices agreed with the majority’s judgment that the Sacketts’ disputed property was not subject to protection as a water and that the Ninth Circuit applied the wrong test (the “significant nexus” test) for determining jurisdiction. They clashed over the test to be applied. Since the case was not a challenge to the underlying science and factual determinations, but over the test to be applied to wetlands, why wasn’t the case and dispute remanded for a new determination under the new test?
The property (or waters) at issue in this case were within a wetlands network, were mapped as such, were near a lake, and were connected to a very close tributary by subsurface flow, with human-built obstructions in the form of a road and houses crucial to severing the waters’ connections. How could the Court conclude itself that there was no jurisdiction? And relatedly, what were the factors that led the Court to view this setting as so indisputably not subject to federal protections that a remand was not appropriate?
A decision that creates more questions and uncertainty
Closer study of the opinion and how it will apply to water features, human activities affecting waters, and state and local law will be essential to figuring out the full implications of the case. Among those questions are the following:
- Do legal but human-built obstructions severing waters’ connections to larger waters eliminate federal protections? The answer before the decision was a clear no. The law now is less certain. The Court says “illegal” barriers would not destroy jurisdiction but is silent on legal barriers and their effects. (For example, roads and houses or other land reshaping might be legally built, but block connectedness of waters.)
- What if wetlands or perhaps streams or other types of water features are wet and connected to other waters much of the year, but now and then — especially with more extreme heat events linked to climate change — they dry out? Does that eliminate the continuous connectedness that the Court emphasizes? The Court mentions that some types of “temporary” interruptions would not be fatal to jurisdiction. What does this mean?
- What will be the rules for arid states and water features that have always only been intermittent and seasonally wet for short periods? Has this opinion just rendered the scarcest and most valuable waters the least protected?
- Can clearly traceable nearby subsurface flows connecting wetlands or small streams to larger waters still justify federal protections?
- The Biden administration a few months ago issued a new “waters of the United States” rule. Will any of it stand, or must EPA and the Army Corps of Engineers start again?
The bottom-line result is clear: The nation’s precious waters are today left substantially less protected due to an emboldened Supreme Court.