Supreme Court could roll back clean water protections

The U.S. Supreme Court heard oral arguments on Monday in a case that could significantly restrict the federal government’s ability to protect waterways from pollution.

The case is one of several potentially landmark rulings set to come from the conservative-majority court this term, in which it is reviewing issues related to affirmative action, voting rights, elections, gay rights and more. In the last term, the court rolled back the Environmental Protection Agency’s ability to regulate the greenhouse gas emissions that cause climate change.

Jaime Sigaran and his sister Bethsaida at a rally outside the Supreme Court, holding signs saying Protect Our Waters, and Our Nation Runs on Clean Water.
Jaime Sigaran, right, and his sister Bethsaida at a rally outside the Supreme Court on Monday to call for protecting the Clean Water Act. (Tom Williams/CQ-Roll Call via Getty Images)

In Sackett v. Environmental Protection Agency, a couple who want to fill in wetlands they own near Idaho’s Priest Lake are arguing that the EPA has stepped outside its authority under the Clean Water Act. The couple, Michael and Chantell Sackett, argue that the court should allow them to build on wetlands near the lake without a federal permit. The petitioners hope the court will rule that wetlands are not “waters of the United States” and therefore not subject to regulation under the law. The Sacketts are challenging a 2021 federal appeals court ruling that sided with the EPA; the appeals court found that the water from the wetlands on the couple’s property ultimately winds up in the lake.

Many expert observers say the wording of the landmark 1972 law, which bans “discharge of pollutants” into “navigable waters,” is ambiguous in its definition of which bodies of water it covers.

The Sacketts are asking the court to extend the reasoning articulated by former Justice Antonin Scalia in the 2006 case Rapanos v. United States, in which four justices signed an opinion written by Scalia arguing that wetlands on private property are subject to the Clean Water Act only if directly connected to a larger body of water such as a river or lake. The government would rather have the court follow the standard in Justice Anthony Kennedy's concurring opinion in that case, in which he said the law requires only a “significant nexus” between the wetlands and bodies of waters.

“Neither the lower courts, nor the agencies, nor the regulated public can agree on what the rule of Rapanos is, much less agree on how to apply any such rule efficiently and consistently,” said a brief from the Pacific Legal Foundation, a conservative advocacy group that represents the property owners in the new Supreme Court case.

Waste dumped at a marsh in the woods.
Waste dumped at a marsh near the mouth of Neshaminy Creek in Bucks County, Pa. (Bastiaan Slabbers/NurPhoto via Getty Images)

The court “should chart a better course for the Clean Water Act by articulating a clear, easily administered, constitutionally sound rule for wetlands jurisdiction, using the surface water-connection test set forth” in Scalia’s opinion, the group said.

The Biden administration responded in a brief that such a ruling would effectively prevent the government from protecting waterways, because pollution may leak in from adjacent wetlands. “Agencies would lack authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity,’” contended a brief from Solicitor General Elizabeth Barchas Prelogar.

Environmental advocacy organizations are worried that a ruling in the Sacketts’ favor could effectively prevent the government from protecting waterways from contamination. “If the court agreed with the flawed argument of the Sacketts and their industry allies, half of the wetlands in the lower 48 states would lose their Clean Water Act protections,” Earthjustice, an environmental law organization that filed an amicus brief on the government’s behalf, said in a Monday statement. “If polluters can act with impunity and without environmental review, the consequences for wetlands connected with lakes and rivers could be catastrophic. The Clean Water Act is the first and strongest line of defense protecting watersheds from pollution, and the Sackett lawsuit threatens to gut that law’s protections.”

If the Supreme Court does roll back part of the EPA’s Clean Water Act authority, the court could narrowly tailor its ruling to the case at hand or issue more sweeping changes — as it did in the dramatic ruling earlier this year overturning Roe v. Wade.

“All of the Court’s six Republican appointees appeared concerned with what Justice Samuel Alito referred to as a ‘vagueness problem,’”’s Ian Millhiser observed.

Several of the court’s most conservative members, such as Alito and Neil Gorsuch, appeared sympathetic to the Sacketts. Gorsuch asked the government’s attorney, Brian Fletcher, how “any reasonable person” should know if their land is covered by the Clean Water Act.

Justice Neil Gorsuch.
Justice Neil Gorsuch, shown in a 2021 photo, appeared sympathetic to the Sacketts. (Melina Mara/Washington Post via Getty Images)

But others asked skeptical questions of the Sacketts’ lawyer, Damien Schiff. “Shouldn’t they have gathered information about the property prior to purchasing?” asked Justice Ketanji Brown Jackson, the court’s newest member, referring to whether their land was subject to Clean Water Act regulation.

In addition to Jackson and the court’s two other liberal members, some of the more moderate members of the court’s six-person conservative majority seemed unconvinced by one of Schiff’s key points. The Sacketts’ attorney contended that a wetland should be subject to regulation only if “it blends into and thus becomes indistinguishable from an abutting water.”

Chief Justice John Roberts noted that two things don’t necessarily need to touch to be functionally connected, like train tracks and a train station. Justice Brett Kavanaugh pointed out that the Sacketts’ narrow interpretation of the law is at odds with the EPA’s practice under both Republican and Democratic presidents.

“Why did seven straight administrations not agree with you?” Kavanaugh asked Schiff.

The court’s ruling, which will likely determine not only whether the Sacketts need a federal permit to build on their wetland but also whether the EPA has jurisdiction over wetlands throughout the country, will be issued next June.