The Supreme Court has struck a blow against the Environmental Protection Agency (EPA) by curtailing the sweeping powers of the agency that it had claimed under the Clean Water Act.
The nation’s highest court has reined in the EPA’s alleged authority to oversee water pollution, stating that the Clean Water Act does not grant the agency the authority to regulate discharges into certain wetlands near bodies of water.
Justice Samuel A. Alito Jr., writing for a majority of five justices, explained that the law only covers wetlands that have a continuous surface connection to those bodies of water.
“The reach of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet at least part of the year is in danger of being classified by E.P.A. employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”
Justice Kavanaugh joined three liberal justices in issuing a concurring opinion, which said the decision would harm the EPA’s ability to combat pollution.
“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
This decision follows a ruling last year that limited the EPA’s authority to address climate change under the Clean Air Act. Justice Elena Kagan, in a separate concurring opinion, drew parallels between the two cases, criticizing the court for appointing itself as the national decision-maker on environmental policy. Kagan argued that the majority’s approach prevents the EPA from effectively regulating adjacent wetlands, just as it hindered the agency from curbing power plant emissions for addressing climate change.
The case at hand, Sackett v. Environmental Protection Agency, involved an Idaho couple, Michael and Chantell Sackett, who wished to construct a house on a residential lot near Priest Lake in the state’s panhandle.
The agency ordered the couple to halt their construction activities and restore the property to its original condition, threatening them with substantial fines. Instead, the Sacketts filed a lawsuit against the agency, leading to a dispute about the lawsuit’s timeliness that reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the lawsuit could proceed.
Justice Alito, in a concurring opinion during the earlier appeal, had expressed concerns about the excessive power granted to the EPA by the Clean Water Act. He criticized the ambiguity surrounding the act’s reach and argued that any land that is intermittently wet throughout the year runs the risk of being classified as wetlands under the agency’s discretion.
The State of Texas in March had blocked the Biden administration’s Clean Water Act rule in federal court.
“Big victory against Biden: Last night a federal court blocked the Admin’s radical ‘waters of the US’ rule, which imposes a leftist environmental agenda on Texas, crushing new regs, and oppressive economic costs. I will always fight to keep Biden’s boots off the necks of Texans!” Texas Attorney General Ken Paxton tweeted.
Attorney General Paxton had filed a complaint in January against the Environmental Protection Agency, as well as the U.S. Army Corps of Engineers, against the Biden administration’s revision of the “waters of the United States” rule.
“The Clean Water Act (“CWA”) requires federal permits to discharge pollutants into ‘navigable waters’,” the lawsuit states. “‘Navigable waters,’ in turn, is defined to mean ‘the waters of the United States, including the territorial seas.’ Waters that do not fit into this definition are not within federal jurisdiction and may still be regulated by states and tribes.”
“By this challenge, the Plaintiffs assert that by amending the definition of ‘waters of the United States,’ as provided in the Final Rule, the Federal Agencies unconstitutionally and impermissibly expand their own authority beyond Congress’s delegation in the CWA— intruding into state sovereignty and the liberties of the states and their citizens,” the lawsuit continues. “The Final Rule also lacks clarity, leaving those wishing to identify the ambit of federal power over dry land or minor water features at the mercy of an expensive, vague, and arbitrary analysis, lest they face a staggering criminal or civil penalty.”
Paxton’s legal complaint cites the Supreme Court decision in Rapanos v. United States, which rejected the US Army Corps of Engineers’ “assertion of expanded authority over non-navigable, intrastate waters that are not significantly connected to navigable, interstate waters.”
On December 30, 2022, the EPA and Army Corps of Engineers announced the final “Revised Definition of ‘Waters of the United States’” rule. On January 18, 2023, the rule was published in the Federal Register; the rule was set to be effective on March 20, 2023.
The Federal Register cites the unanimous Supreme Court decision in United States v. Riverside Bayview Homes that purportedly acknowledged that Congress delegated a ‘‘breadth of federal
regulatory authority’’ in the Clean Water Act and expected the Environmental Protection Agency (EPA) and the Department of the Army to tackle the ‘‘inherent difficulties of defining precise bounds to regulable waters.’’
In December, the EPA and US Army made a joint announcement to justify the rule change.
“Today, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (the agencies) announced a final rule establishing a durable definition of ‘waters of the United States’ (WOTUS) to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity,” the joint announcement said. “The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities.”
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”
“This final rule recognizes the essential role of the nation’s water resources in communities across the nation,” said Assistant Secretary of the Army for Civil Works Michael L. Connor.“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders.”
Attorney General Paxton in a press release in February urging the court to issue a preliminary injunction argued the Clean Waters Act was being exploited to exert “federal control over states like Texas.”
“The environmental extremists who wrote this unlawful rule have no interest in respecting our sovereignty or our natural resources,” said Attorney General Paxton. “For this Administration, this isn’t about environmental protection—it’s about federal control over states like Texas, and we aren’t going to allow it. This rule is unlikely to survive our efforts to stop it permanently, and it is important that the court prevents the change in definition from going into effect until our case has been decided.”
It turns out that the Supreme Court has rendered the EPA’s rule moot, striking a blow against the agency’s powers and the climate change agenda of the Biden administration.
Follow Kyle Becker on Twitter @kylenabecker.