Last fall, Robert Redford (yes, that Robert Redford) took to the pages of USA Today to offer a dire warning of the dystopian future awaiting us if the Supreme Court reined in the Clean Water Act in Sackett v. Environmental Protection Agency (EPA), a case argued by our firm, the Pacific Legal Foundation. The Supreme Court has unanimously rebuked the EPA for its overreach and environmentalists are reprising tired talking points—like Redford's—about the Court's supposed war on science.
Those arguments miss one very important fact: None of the Court's decisions that its critics so hate have anything to do with science. The Supreme Court has one job and one job only: to interpret and apply the laws passed by Congress and signed by the president. That's it.
Consider last year's West Virginia v. EPA. The Court held that Congress never gave the EPA the authority to adopt its Clean Power Plan and that any "decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."
Or consider the Court's ruling in National Federation of Independent Business (NFIB) v. Occupational Safety and Health Administration (OSHA) on constitutional challenges to OSHA's nationwide employer COVID-19 vaccine mandate. The justices ruled that OSHA did not have the authority to create a vaccine mandate because the Occupational Safety and Health Act didn't give OSHA the power to set health and safety standards except those that relate to occupational hazards that are specific to the workplace. COVID-19 was a risk found in some workplaces, but it wasn't a risk specific to the workplace—it was everywhere.
Which brings us to Sackett v. EPA, the cause of so much agita for Redford and his friends. Last week, the Court decided that the Clean Water Act applies to actual bodies of water—not any ground that is occasionally damp.
When Chantell and Michael Sackett bought land in Idaho to build their dream home, they had no idea they would start a 15-year legal battle that would take two trips to the nation's highest court to settle. The EPA claimed their property was a federally protected wetland and ordered them to stop construction and return the land to its original form or face fines upward of $40,000 per day.
One problem: The Clean Water Act only applies to "navigable waters" and—as the Supreme Court ruled last week—only wetlands that share a continuous surface water connection with them.
In each of these cases, the central question was whether Congress gave the EPA or OSHA the power they were claiming, and, in each case, the Supreme Court said no.
In response to these cases, the apocalypse brigade brayed about the Court's disregard for science. In West Virginia v. EPA, they insisted that the science was settled, and the EPA's Clean Power Plan was critical to address climate change. In NFIB v. OSHA, they contended that the science demanded a vaccine mandate to protect workers. And in Sackett v. EPA, they protested that science required the EPA to regulate every sometimes-soggy patch of land from coast to coast or else fish will grow two heads and the Cuyahoga River will catch back on fire.
Of course, these may be reasonable arguments to make to policy makers—if we set aside nagging questions about just how settled the science really is. And those policy makers can, and should, consider arguments based on scientific expertise. But Supreme Court justices aren't policy makers.
If the law, properly interpreted, is out of step with science, it is not for the Court to ignore a statute's plain meaning, but for Congress—the legislative branch and the people's representatives—to fix the problem and make new laws that are grounded in science.
The Supreme Court should be agnostic on questions of science but clear and resolute on questions of law. After all, that's the Court's job.