Supreme Court Grants Certiorari to Clarify the Scope of Federal Regulatory Jurisdiction under the Clean Water Act

The Sacketts get a return trip to the Supreme Court.

The Supreme Court's decision to grant certiorari in two cases challenging the use of race in college admissions may grab the headlines, but the Court's other two cert grants today are quite significant for administrative and environmental law, in that they concern challenges to regulatory actions by the Federal Trade Commission and Environmental Protection Agency, respectively.

In Sackett v. Environmental Protection Agency, the Supreme Court has decided (once again) to wade into the question of federal regulatory jurisdiction under the Clean Water Act. The Sacketts have been trying to develop their property for over a decade, only to be frustrated by assertions of federal regulatory authority under the CWA. As I detailed here, the Sacketts first came to the Supreme Court seeking the right to challenge an EPA administrative compliance order demanding that they cease developing and restore their land. Now they are challenging whether the federal government has anything to say about how they use their parcel in the first place.

In Sackett the Court granted certiorari to consider "Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U. S. C. §1362(7)." This could result in a narrow consideration of whether the Ninth Circuit properly applied the Supreme Court's fractured caselaw on the scope of federal jurisdiction to regulate "waters of the United States." More likely, the Court will use this case as an opportunity to clarify and refine the definition, perhaps even embracing the approach adopted in Justice Scalia's four-justice plurality in Rapanos v. United States. Three justices who joined Justice Scalia's Rapanos opinion are still on the Court (Roberts, Thomas, Alito), and at least two others have expressed sympathy for constraining the scope of "waters" subject to federal control (Kavanaugh and Gorsuch).

The Court's decision to grant this case means we might not have to wait for litigation over regulatory definitions of "waters of the United States" before getting greater certainty as to the scope of federal regulatory jurisdiction. The Court will instead address the question directly. (And for those who worry about Chevron deference, note that in the SWANCC decision the Supreme Court already held that the EPA and Army Corps should not get Chevron deference on this question insofar as it raises significant federalism questions and risks intruding on traditional state authority over land use control.)

Last fall, a district court in Arizona vacated and remanded the Trump Administration's Navigable Waters Protection Rule (NWPR), clearing the way for the Biden Administration to draft a new rule of its own (while also encouraging federal regulators to throw out jurisdictional determinations made under the NWPR, even though they had previously told the Supreme Court that landowners may rely on those determinations for five years). Now any such new definition will have to account for the Supreme Court's updated guidance. In all likelihood, this means the Biden Administration will have to adopt a rule governing CWA jurisdiction that is significantly narrower than it would like.

 

Comments

[Kazinski]

How refreshing for SCOTUS to start taking some of these cases that have been ripe for a while and hopefully cutting back on federal overreach.

Of course I don't take notice that the Anti-Aisian Harvard case is asserting federal authority over a private institution, but that principle was settled long ago, so it's not asserting any new authority.

[DaivdBehar]

All water is connected to the ocean. Including the puddle in your toilet. The vile toxic lawyers at the EPA want to control it. Make them compensate the Sacketts out their personal assets. To deter.

[Rossami]

A big difference, I think, is that the recent cases are about cutting back specifically on Executive branch overreach - that is, administrative agencies asserting authorities not explicitly granted by Congress. The assertion of federal authority over Harvard, on the other hand, is based on a law actually passed by Congress.

[Stephen Lathrop]

It may not have been a mistake for the Court to ignore the facts of the first Sackett case, which was about procedure. The facts of the next Sackett case—as described in the OP—are probably beyond this Court's competence (or ideological willingness) to consider. Errors of factual interpretation in this case risk gutting the Clean Water Act altogether.

[Kazinski]

Why would it be beyond the courts competence to apply the law as congress wrote it as permitted by the takings clause and the commerce clause?

The courts job isn't to balance all the interests, environment, private property, climate etc. There job and core competence is merely to figure out whether the law permits the EPA and Corp of engineers to assert the authority they are claiming.

[Stephen Lathrop]

Why would it be beyond the courts competence to apply the law as congress wrote it as permitted by the takings clause and the commerce clause?

Kazinski, because before they can use this case to pronounce on the authority claimed under the law, the Court would have to confess that the facts of this case do not make it a case useful for defining the outer limits of the law. It is instead a case of flagrant violation of the law, construed in its narrowest reasonable terms. If the Sackett's parcel—covered at times by moving water which discharges into navigable waters of the United States, without any vegetation on it except wetland vegetation, and probably never dry except during an extreme drought, or maybe not even then—is not a wetland, then there is no such thing. If the Court does use this case to rule the law cannot apply, nothing meaningful will be left of the law.

Perhaps you think the takings clause and the commerce clause mean that federal regulations for environmental protection must always be ruled takings, to be paid for by governments in every case. That is not what the law meant when it was passed. It is not what the law means now. If the Court redefines the law to mean that in the future, it will put the purpose of the law beyond the fiscal means of governments to accomplish. Which, of course, is the goal the development interests which backed the case hope to achieve.

When the Clean Water Act passed Congress, the practical extinction of US wetlands by development interests was already in sight. The rate of wetlands filling had gone so high that only a few more decades would have sufficed to get rid of them all.

That fact provided the impetus for the law. It was what convinced Congress the law was necessary.

That finding of necessity is not within the legitimate power of the Court to overturn. If that means a wetland is less valuable left alone than it would be if filled and developed, then mandating policy which imposes that lower value is within the scope of the Necessary and Proper clause.

There is nothing constitutionally illegitimate about environmental protection. There is nothing mandatory about maximization of speculative value.

[MatthewSlyfield]

"It is instead a case of flagrant violation of the law, construed in its narrowest reasonable terms."

You do not get to declare by fiat what "construed in it's narrowest reasonable terms" means. That is for the court to determine.

[Noscitur a sociis]

I mean, he did explain why he thought that. He's wrong on both the facts and the law (it is Stephen Lathrop, after all), but he did show his work.

[David Nieporent]

Isn't this the one where he used Google satellite view to declare that these were covered wetlands beyond all cavil because, well, just look at the satellite photo?

[Stephen Lathrop]

Nieporent, information came from satellite photos, plus on-the-scene photos. Also from general knowledge of North Idaho geologic cues gained from extensive personal experience in that region. The geology there is stereotypical, with that kind of waterside formation occurring again and again throughout the region.

In addition, I have first-hand knowledge of the regional flora, plus the ability to recognize not only wetland vegetation, but also to discern kinds of wetland vegetation which grow in continuously saturated areas, as compared to others which grow in areas which are only intermittently wet. The Sackett plot as presented online includes extensive coverage by plants which do not grow where the soil dries out.

That list actually gives the problem more attention than it needs. I have hunted that North Idaho region time and again. Anyone who hunts knows what to expect at a glance: go in there and the muck will pull your boots off.

Assuming you have forthright interest, here is a visual guide you can use without getting your feet wet. When you see a band of uniform vegetation, with open water on one side of the vegetation, and on the side opposite the water a sharply defined edge which follows a precise elevation contour, and living conifers beyond the sharply defined contour line, that vegetation covers a permanent wetland, adjacent to a drier upland occupied by conifers. The critical elevation difference between the wetland and the conifers could be as small as a foot or less. Despite that, the sharp transition is unmistakable, even on a satellite photo. Then, when you see on-the-scene photos of that vegetation bulldozed, which exist online for the Sackett property, with every declivity filled with standing water, you are not a bit surprised.

[David Nieporent]

For someone who thinks it takes decades of study just to read some books about the past and figure out what happened, you sure disdain expertise when it suits you.

[Stephen Lathrop]

Noscitur, I will be happy to be corrected by you on the law, and surprised if you can show evidence I am wrong on the facts.

[ReaderY]

The question is not whether these lands are wetlands. It’s whether they are “navigable waters.”

[Noscitur a sociis]

That is not, in fact, the question.

[Brett Bellmore]

It is, in fact, the constitutional question, since the federal government isn't given any authority by the Constitution over "wetlands", but the Supreme court has declared it has authority over "navigable waters".

Mind, I find the basis of that delegation kind of sketchy, but there's at least a basis, which is more than you can say for "wetlands".

[MatthewSlyfield]

And the reason the "navigable waters" issue is important is that the hook that the CWA uses to Congress's enumerated powers is the commerce clause.

Waters that are not navigable can not be used for commerce, inter or intra state.

[Stephen Lathrop]

Waters that are not navigable can not be used for commerce, inter or intra state.

At the headwaters of the Salmon River, in the Sawtooth Valley of Idaho, at an elevation of nearly 7,000 feet, you can find the former spawning grounds of some of the most determined king salmon in the world. Back before their annual migrations succumbed to dams put between them and the Pacific, you could see 30- and 40-pound salmon on their spawning beds. They were enormous fish, so big that the tops of their backs were continuously exposed above the few inches of water they had.

Those rivulets they spawned in were anything but navigable. You couldn't float a commercially useful stick of lumber down them. But to this day there is still lucrative commerce in wild king salmon. There is less available, and it's kind of pricey. There are more ways than just floating on it to use water to conduct commerce.

For another, similar insight. Tens of mile downstream on that same Salmon River, the dryish river gorges sustained stands of Douglas fir on their sides, with some of that timber potentially useful in commerce. For a time, the survival of those timber stands mystified forestry experts. The foresters had tested the surrounding rocks, and found them so deficient in phosphorus that conifers should not have been able to grow there. Then the foresters figured out that the annual salmon runs were bringing enough phosphorus up from the Pacific to keep the trees going. The fish died after spawning, their carcasses attracted animals and birds to feed, and those then spread phosphorus up the sides of the gorge in their feces. That was all figured out decades ago, before the salmon runs largely died out.

Some foresters ventured dire predictions, that if the salmon disappeared, so would the trees. At the time, I thought that sounded like a long shot prediction. I happened to go back there in 2017, about 40 years after the gloomy predictions about the trees. Sure enough, everywhere the firs were dying, or already dead.

It takes a heavy load of purpose-built prejudice to reach a conclusion that water which is not navigable is for that reason useless for commerce.

[Brett Bellmore]

Think they can keep the volley going a few more cycles? The Sacketts haven't been drained dry yet.

[Commenter_XY]

Potential Ninth Circuit bench-slap ahead....

[Bob from Ohio]

Two trips to the Supreme Court!

Good illustration of why the court should resolve its cases, not remand.

Prof. Kerr points out that all "winners" of Fourth Amendment cases never benefit on remand.

[Kazinski]

The way the EPA structured their enforcement, by starting to rack up fines before final agency determination made it impossible to settle with one ruling.

It's not just Texas with SB8 that can game the court system and make it hard to cut to the crux of the matter.

[John F. Carr]

If they paid their lawyers market rates, how much would this case have cost them so far?

[Bob from Ohio]

More than they could have afforded.

[Orbital Mechanic]

I can hardly wait. Clear the way for poisoning our water for profit. Bonus: libs are furious.

[Jmaie]

Landowners add gravel and fill dirt into a low lying area in order to build a house. Neither poisoning nor profit to be found...

[Stephen Lathrop]

Jamie, the case is intended by its backers to expose a thick vein of poisoning and profit in the precedent.

[Jmaie]

Firstly, it's Jmaie ;<)

Secondly, I submit that this is a great example of why heavy handed one-size-fits-all regulation should be avoided. There's no method for exception where it can be shown that the property owner's actions don't cause poison for profit, and so we have the specter of proper regulation being voided.

You may or may not have heard of (Washington state's) King County "Critical Areas Ordinance" which greatly restricts what landowners can do with their property. Purpose is to prevent environmental damage due to development, which is fine. Problem being, the ordinance covers wide swaths of land on the eastern side that has no potential for such damage. Most of the county's population resides in the Seattle metro area, which is not subject to the regulation due to parcel size. Said population had little to no knowledge of the issues but were happy to vote yes, 'cause save the planet. Who cares about those rubes out in the rural parts anyways, eh?

[DWB]

Since water flows from state to state the federal government actually should have some powers to ensure fairness among the states.

Government being what it is, it is no surprise that it tries to micromanage down to the absurd level of calling every puddle it can find a "wetland!"

Yeah, we are much less free...