Overnight Energy & Environment — High court will hear case on water rule

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Welcome to Monday's Overnight Energy & Environment, your source for the latest news focused on energy, the environment and beyond. Subscribe here: thehill.com/newsletter-signup.

Today we're looking at the Supreme Court agreeing to hear a case on the Waters of the United States rule, a warning from climate envoy John Kerry and a glimmer of hope for the infrastructure bill's climate provisions.

For The Hill, we're Rachel Frazin and Zack Budryk. Write to us with tips: rfrazin@thehill.com and zbudryk@thehill.com. Follow us on Twitter: @RachelFrazin and @BudrykZack.

Let's jump in.

Supreme Court takes up wetlands case

The Supreme Court will review the question of which wetlands get protections under the Clean Water Act, a case with implications for water pollution and business operations.

The court on Monday agreed to take up the question of what legal test should be used to determine whether certain wetlands are protected under the federal law.

How we got here: At issue is the case of Michael and Chantell Sackett, who, in 2007, started to build a home on a vacant lot that they own. The Sacketts had obtained local permits for the construction, but the Environmental Protection Agency (EPA) determined at the time that the activity was a violation of the Clean Water Act because the lot contains wetlands that qualify for protections.

Last year, the 9th Circuit appellate court ruled against them, applying an opinion penned by former Supreme Court Justice Anthony Kennedy, which said regulation of wetlands should be determined by whether they have a "significant nexus" with traditionally regulated waters like lakes and rivers.

But that's where it gets complicated: That "significant nexus" test came from a 2006 case, and was the concurring opinion to another, narrower test, set up by then-Justice Antonin Scalia. Scalia's test would have applied only to wetlands with a continuous surface-level connection to traditionally regulated bodies.

Read more about the case here.

Kerry warns world 'not on good track'

U.S. climate envoy John Kerry warned Monday that the world is "in trouble" and off-track in its efforts to mitigate or reverse the impacts of climate change.

"Let be factual, above all, but let me also be blunt and hopefully motivating. We're in trouble, I hope everybody understands that. Not trouble we can't get out of, but we're not on a good track," Kerry said at a U.S. Chamber of Commerce event.

The former secretary of State said that "a lot of good things are happening, a huge amount of good came out of Glasgow," referring to the COP26 summit in Scotland held last November.

Good news and bad news: However, he said, "We're already seeing tipping points arrived at," citing recent research finding the Arctic is warming at quadruple the rate of the rest of the planet.

"We're also seeing the impacts in floods and fires and mudslides and the extraordinary heat, which is growing in various parts of the world."

"We need to be compelled as human beings, as leaders particularly, to respond to this," Kerry added, saying he was encouraged by the number of private sector entities that announced net-zero goals at the summit.

However, the former Democratic presidential nominee expressed dismay at increased U.S. coal production, which came after the country hit a half-century low in 2020.

Read more about Kerry's remarks here.


President Biden's remarks at last week's press conference are giving momentum to the climate portions of his spending agenda as lawmakers call for Congress to pass the parts of the Build Back Better legislation that are achievable.

A refresher: Biden expressed confidence that lawmakers can pass upward of $500 billion in energy and environmental spending - a number close to the amount the White House proposed spending on climate and clean energy in October.

He also suggested that the package as a whole may need to be broken up in order to pass. And after months of negotiations, weary lawmakers are now pushing to get climate action across the finish line.

"We need to figure out what we have agreement on and we need to do that," Sen. Tina Smith (D-Minn.) told The Hill in an interview on Thursday.

"Based on where we have been and comments that Sen. [Joe] Manchin has made about the climate provisions that we have been negotiating up until the end of last year, it seems like those sections of the old Build Back Better bill should be in pretty good shape," she added.

Manchin has expressed support for the environmental provisions, but moving ahead would mean cuts to other programs, including an expanded child tax credit, to win his vote.

But Smith said it's important to be practical and get as much as possible out of the negotiations.

"I'm a progressive in the caucus but I'm also practical, and I think this is the practical, commonsense way of moving forward to accomplish the best that we can," she said.

Her comments come amid similar statements from others. Senate Finance Committee Chairman Ron Wyden (D-Ore.) told reporters last week that he saw Biden's latest remarks as creating "a path for a handful of provisions where we've got a lot of strong support, and it starts with climate. It starts with health care."

Read more about the momentum his remarks added here.


  • How millions of people ended up with a toxic chemical in their water (Politico)

  • Could Florida turn off the sun? Advocates say a utility-backed bill imperils rooftop solar in the Sunshine State (CNN)

  • Climate change factors into 40% of the Commerce Department's work: Commerce Secretary Raimondo (Yahoo Finance)

  • Old-Fashioned, Inefficient Light Bulbs Live On at the Nation's Dollar Stores (The New York Times)

  • Shell's massive carbon capture facility in Canada emits far more than it captures, study says (CNBC)


  • The Hill will be releasing a four-part investigative series starting Tuesday written by Rachel and our colleague Sharon Udasin exploring legal hurdles faced by individuals exposed to toxic chemicals.

  • Check out TheHill.com tomorrow morning and Tuesday's newsletter for the first installment.

That's it for today, thanks for reading. Check out The Hill's energy & environment page for the latest news and coverage. We'll see you Tuesday.

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