5 ways the Supreme Court could transform water policy

The Supreme Court will take up a landmark dispute Monday that could shape the scope of the Clean Water Act for decades to come, affecting the fate of wetlands that have an outsize effect on emissions and climate change.

The nation’s highest court will kick off its new term with oral arguments in Sackett v. EPA, in which Idaho landowners have asked the court to exempt their land from costly federal permitting requirements by instructing a lower court to apply a more restrictive definition of waters of the United States, or WOTUS.

Some expect the Supreme Court — now dominated by six conservative justices — will side with the landowners, Michael and Chantell Sackett.

“I find the arguments made on behalf of the Sacketts to be bold. They’re interesting. They might succeed,” Georgetown Law professor William Buzbee said on a recent panel hosted by the Federalist Society and Heritage Foundation. “The current Supreme Court certainly is kind of aggressive in an anti-environmental and anti-regulatory way. And they may find a way to get to where the Sacketts want to go.”

Attorneys for the Sacketts have asked the justices to find that a lower court applied the wrong test for determining that their property near Idaho’s Priest Lake contained a wetland subject to a federal Clean Water Act permit.

In 2006, the Supreme Court in Rapanos v. United States considered the reach of EPA and the Army Corps of Engineers’ permitting program. The result was a splintered 4-1-4 ruling that delivered two competing tests for determining which wetlands and waterways qualify for federal protections.

Justice Anthony Kennedy’s concurring opinion offered the “significant nexus” test, which takes a more expansive view of what constitutes a water of the United States. That’s the test the federal courts have largely applied since Rapanos and that the Obama and Biden administrations have used as the basis for codifying a WOTUS definition.

Under both Democratic and Republican administrations, EPA, the Army Corps and the federal courts have determined that the Sacketts’ property has a significant connection to Priest Lake, located about 300 feet away.

But the Sacketts are hoping the Supreme Court will be sympathetic to their claims that an approach more aligned with Justice Antonin Scalia’s restrictive “continuous surface connection” test from his Rapanos plurality should control.

“The fact that the Supreme Court took this case is a clear indication that they think they have to correct something,” said Kevin Minoli, former EPA acting general counsel and now a partner at the firm Alston & Bird LLP.

Freeing the Sacketts’ property from federal permitting requirements may even require the Supreme Court to reach far beyond the Scalia test — and, some legal observers say, the text of the Clean Water Act itself (Greenwire, Sept. 16).

Sackett has the potential to continue the practice of the Supreme Court’s newly emboldened conservative wing to find ways to chip away at the power of federal agencies to address not only pollution, but also health emergencies, racial injustice and climate change, said Emily Hammond, a professor at George Washington University Law School during a recent panel discussion hosted by the school (Greenwire, Sept. 28).

Last term in West Virginia v. EPA, for example, the court issued a 6-3 ideological ruling that struck down an Obama-era power plant emissions rule and offered a new doctrine to dismantle federal regulations much more broadly.

“To the extent we continue to see the court whittling away agencies’ ability to have flexibility — not just in permitting for wetlands but also in addressing these other incredibly pressing issues — I think we’re going to keep seeing these trends coming in that way as well,” Hammond said.

Here are five ways Sackett could upend federal water policy.

1. Muddying the waters

The case the Supreme Court will hear Monday may not provide the clarity environmental groups, developers, farmers and other interested parties are seeking.

Vermont Law and Graduate School professor Pat Parenteau said he doesn’t necessarily see a “definitive ruling” emerging from the arguments that will settle the yearslong back-and-forth over the WOTUS issue.

“Assuming the Court rejects the Kennedy significant nexus test and adopts the Scalia ‘continuous surface connection’ to a ‘relatively permanent’ water body test, the most likely outcome will be a remand to the trial court for further proceedings,” Parenteau wrote in a recent blog.

The court, he said, could also rule that the existence of a road or other artificial barrier categorically defeats jurisdiction, but Parenteau said that would be reaching beyond the facts in the record and seems unlikely.

“In short, Sackett is likely to satisfy no one,” he said. “Congress is the only body that can settle the WOTUS question once and for all. And after 50 years in this business, I’m not holding my breath on that happening anytime soon.”

2. A new permitting regime?

Should a more limited WOTUS definition emerge, it would inherently shrink the reach of the federal water permitting program and therefore which wetlands and waterways require a federal permit to fill or dredge.

But one legal observer sees a path for the conservative justices to separate dredge-and-fill activities — like what the Sacketts are attempting to do on their property — under Clean Water Act Section 404 from discharges of pollutants into public waters, which are governed by Section 402 of the statute.

It’s a distinction Scalia sought to articulate in a section of his Rapanos plurality — and that some of the late justice’s acolytes who are currently sitting on the bench might seek to cement in Sackett, said Robin Kundis Craig, a law professor at the University of Southern California.

When EPA requires a permit of a person or developer filling in wetlands, Craig said, there can be a perception that the federal agency is interfering with profits, private land rights or state land use decisions.

“The court has always found that very suspect, compared to when you’ve got a pipe, and you’re dumping industrial waste into a river,” she said. “The court has always since [the passage of the Clean Water Act] instinctively understood that to be a prevention of a nuisance, and no one should have the right to dump their waste into public waterways.”

Even some of the court’s conservative members — Chief Justice John Roberts and Justice Brett Kavanaugh — voted in favor of greater Section 402 protections in the 2020 case County of Maui v. Hawaii Wildlife Fund, which said that EPA could, under some circumstances, regulate pollution that moves through groundwater.

Craig said she is most concerned about how far the court could rule on the exact question the justices have agreed to review: whether a lower court “set forth the proper test for determining whether wetlands are ‘waters of the United States’” subject to Clean Water Act jurisdiction.

She said she sees a path for the conservative wing to go all the way back to the Supreme Court’s unanimous ruling in the 1985 case United States v. Riverside Bayview Homes, which said the government has the power to regulate intrastate wetlands.

“I could see a hyper-plain-meaning court saying, ‘No, the Clean Water Act says waters of the United States, and lands are not waters,’” Craig said.

She added: “Which, if you’ve ever been in a swamp, is a pretty ridiculous statement.”

3. Jeopardizing shrinking streams

The case is set to have an outsize effect on ephemeral streams that are mainly fed by rainwater and already feeling the pinch of climate change and climbing temperatures.

Researchers in a peer-reviewed article published in Science two years ago warned that a more restricted application of the Clean Water Act would put millions of miles of streams and acres of wetlands at risk (E&E News PM, Aug. 13, 2020).

The article, which focused on the Trump administration’s Navigable Waters Protection Rule, found ephemeral streams and non-floodplain wetlands are usually underestimated by remotely sensed data.

Especially vulnerable, they said, are playa lakes, prairie potholes, Carolina and Delmarva bays, pocosins, and vernal pools, noting that preliminary analysis predicts widespread losses of wetland functions, with particularly high impacts on wetlands in arid and semiarid regions.

Parenteau pointed to studies that have shown ephemeral streams are extremely vulnerable to climate change and that any ruling to narrow the scope of the Clean Water Act would leave their fate up to states that are understaffed, cash-strapped and potentially precluded by their own laws from replacing federal oversight.

“As the West continues to dry with extended droughts, the Clean Water Act is simply going to disappear from the West,” he said.

A more limited Clean Water Act permitting program could also jeopardize wetlands and ephemeral waterways that buffer coasts from storm surges and provide habitat for vulnerable species, said Hannah Connor, senior attorney at the Center for Biological Diversity.

“This decision will be nothing short of a life-or-death sentence for coho salmon, razorback suckers, California tiger salamanders and hundreds of other endangered animals that rely on ephemeral and intermittently flowing streams and wetlands,” Connor said in a statement.

“The case comes down to whether the court will acknowledge established legal precedent, sound science and the unambiguous intent of the Clean Water Act,” she continued, “or rule in furtherance of a political agenda promoting unfettered development and corporate greed.”

4. Sending Biden back to the drawing board on WOTUS

Exactly how far the court goes in defining WOTUS will send ripple effects across EPA and the Army Corps, which are working to craft a new rule before the end of President Joe Biden’s tenure (E&E News PM, Sept. 14).

EPA’s draft final rule to define WOTUS is currently undergoing White House and interagency review, but it’s unclear when that will wrap up.

The rule will likely take effect upon publication in the Federal Register, said Parenteau with the Vermont Law and Graduate School.

EPA released a proposal of the rule late last year, which formally scrapped the Trump-era WOTUS regulation and reinstated pre-2015 Clean Water Act rules that were also updated to reflect Supreme Court decisions (E&E News PM, Nov. 18, 2021).

The agency is also planning to address additional changes in a separate, second rulemaking that will consider further refinements and take into account additional stakeholder engagement and implementation considerations, scientific developments and environmental justice values.

But the Supreme Court case is on a direct collision course with that rulemaking.

Parenteau said the most likely scenario is that EPA and the Army Corps will finalize the final rule, see what the Supreme Court decides and then gauge whether they have to go back to “square one” and recraft the regulation. The agencies could also address the Supreme Court’s decision in its second rulemaking.

“We’re going to have to wait and see … this is strange territory,” said Parenteau.

5. Handcuffing federal agencies — and Congress?

In the Supreme Court’s last landmark environmental case — West Virginia v. EPA — the justices not only struck down an Obama-era power plant emissions rule but fleshed out a legal theory that could be wielded against a swath of other federal regulations.

Application of the “major questions” doctrine, which says Congress must speak clearly if it wants federal agencies to address issues of vast political and economic significance, in the Sackett case should hand a win to EPA, which has not deviated from its clearly defined Clean Water Act authority, 167 federal lawmakers wrote in a recent amicus brief.

“This case’s regulatory setting is thus utterly unlike any case where the major questions doctrine has been invoked,” attorneys for the lawmakers wrote in the brief. “A fair reading of the Act, especially its operative provisions’ criteria for waters protection and federal and state roles, affirms the agencies’ longstanding views of their authority.”

Damien Schiff, senior attorney for the Pacific Legal Foundation representing the Sacketts, has said he agrees that the major questions doctrine is not a good fit for his clients’ case.

Instead, he has pointed the justices to a citation to an earlier Clean Water Act case in Justice Neil Gorsuch’s concurring opinion in the West Virginia case — in which Gorsuch wrote that he would have limited Congress from handing power to federal agencies in the first place (Greenwire, July 5).

“You could almost even argue that when a statute radically reworks traditional federal-state allocation of power, that’s per se a major question,” Schiff said.

Buzbee, who authored the lawmakers’ amicus brief, said during his remarks before the Federalist Society that a ruling in the Sacketts’ favor would necessarily ignore the very text of the Clean Water Act — and could further undermine public trust in a court that already faces serious questions about its legitimacy.

“If the Supreme Court no longer is heeding what statutes say, then you have a court that is largely just freed up to do as it wishes,” Buzbee said. “And that becomes a problem. Legislative supremacy is our central constitutional value in our democratic form of government.”

He added: “The stakes are environmentally huge and constitutionally huge as well.”

5 ways the Supreme Court could transform water policy