The Volokh Conspiracy
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In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands
The Clean Water Act decision was a unanimous win for the Sacketts, and a 5-4 victory for Justice Scalia's 2006 Rapanos v. United States plurality.
Today, in Sackett v. Environmental Protection Agency, the Supreme Court adopted a narrowing interpretation of the scope of federal regulatory authority under the Clean Water Act (CWA). The justices were unanimous in rejecting the U.S. Court of Appeals for the Ninth Circuit's expansive interpretation of the EPA's regulatory authority and Justice Kennedy's "significant nexus" test for CWA jurisdiction. But the justices split 5-4 on how to interpret the CWA and the extent to which Congress authorized the regulation of wetlands as part of "the waters of the United States."
Justice Alito wrote the opinion for the Court, joined by the Chief Justice and Justices Thomas, Gorsuch, and Barrett. Justice Thomas concurred, joined by Justice Gorsuch. Justice Kavanaugh concurred in the judgment (in what is effectively the principal dissent), joined by Justices Sotomayor, Kagan, and Jackson, and Justice Kagan wrote a separate opinion concurring in the judgment joined by Justices Sotomayor and Jackson.
Justice Alito's opinion for the Court embraces Justice Scalia's plurality opinion from Rapanos v. United States. Writes Justice Alito:
the Act applies to "navigable waters," which had a well-established meaning at the time of the CWA's enactment. But the CWA complicates matters by proceeding to define "navigable waters" as "the waters of the United States,"§1362(7), which was decidedly not a well-known term of art.This frustrating drafting choice has led to decades of litigation, but we must try to make sense of the terms Congress chose to adopt. And for the reasons explained below, we conclude that the Rapanos plurality was correct: the CWA's use of "waters" encompasses "only those relatively permanent, standing or continuously flowing bodies of water' forming geographic[al] features' that are described in ordinary parlance as 'streams, oceans, rivers, and lakes.'"
According to Justice Alito, this means that wetlands that have a continuous surface water connection or are directly adjoining jurisdictional waters may be regulated as part of the waters of the United States, those wetlands that are physically "separate" from such waters may not be, even if they would satisfy a more capacious definition of "adjacent." He writes:
In sum, we hold that the CWA extends to only those wetlands that are "as a practical matter indistinguishable from waters of the United States." Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish "first, that the adjacent [body of water constitutes] . . . 'water[s] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." Id., at 742.
Justice Thomas concurred separately to suggest that a fuller examination of the scope of federal regulatory authority might require more dramatic limits on the regulatory authority of the EPA (and Army Corps of Engineers). Joined by Justice Gorsuch he writes:
like the Rapanos plurality before it, the Court focuses only on the term "waters"; it does not determine the extent to which the CWA's other jurisdictional terms—"navigable" and "of the United States"—limit the reach of the statute. Ante, at 14–18; Rapanos, 547 U. S., at 731 (plurality opinion). I write separately to pick up where the court leaves off.
He then goes to explain how federal regulatory authority over navigable waters was traditionally constrained by the scope of the federal Commerce Power, and should be understood in the terms embraced by the Supreme Court in The Daniel Ball (1871).
The text of the CWA thus reflects the traditional balance between federal and state authority over navigable waters, as set out by The Daniel Ball. It would be strange indeed if Congress sought to effect a fundamental transformation of federal jurisdiction over water through phrases that had been in use to describe the traditional scope of that jurisdiction for well over a century and that carried a well-understood meaning.
Though technically an opinion concurring in the judgment, Justice Kavanaugh's opinion reads like a dissent, as it takes issue with the majority's narrow interpretation of the scope of federal regulatory authority, particularly with regard to wetlands "adjacent" to otherwise regulable waters.
I agree with the Court's reversal of the Ninth Circuit. In particular, I agree with the Court's decision not to adopt the "significant nexus" test for determining whether a wetland is covered under the Act. And I agree with the Court's bottom-line judgment that the wetlands on the Sacketts property are not covered by the Act and are therefore not subject to permitting requirements.
I write separately because I respectfully disagree with the Court's new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a "continuous surface connection" to waters of the United States—that is, when the wetlands are "adjoining" covered waters. Ante, at 20, 22 (internal quotation marks omitted). In my view, the Court's "continuous surface connection" test departs from the statutory text, from 45 years of consistent agency practice, and from this Court's precedents. The Court's test narrows the Clean Water Act's coverage of "adjacent" wetlands to mean only "adjoining" wetlands. But "adjacent" and "adjoining" have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act's coverage of wetlands to only adjoining wetlands, 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.
Justice Kagan's separate opinion emphasizes some of the same points and criticizes the majority opinion for not placing sufficient weight on CWA's reference to adjacency. She writes:
Like JUSTICE KAVANAUGH, "I would stick to the text." Post, at 14 (opinion concurring in judgment). As he explains in the principal concurrence, our normal method of construing statutes identifies which wetlands the Clean Water Act covers—and the answer provided exceeds what the Court says today. Because the Act covers "the waters of the United States," and those waters "includ[e]" all wetlands"adjacent" to other covered waters, the Act extends to those "adjacent" wetlands. 33 U. S. C. §§1362(7), 1344(g)(1). And in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. See post, at 4–5 (quoting multiple dictionaries). So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two. As applied here, that means—as the EPA and Army Corps have recognized for almost half a century—that a wetland comes within theAct if (i) it is "contiguous to or bordering a covered water, or (ii) if [it] is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like." Post, at 14 (emphasis in original). In excluding allthe wetlands in category (ii), the majority's "'continuous surface connection' test disregards the ordinary meaning of more precisely, narrows the scope of—the statute Congress drafted.
This decision is quite significant, particularly for federal control of land use. Under this decision, it will be significantly more difficult for the EPA or Army Corps of Engineers to assert federal regulatory authority over private land under the CWA. Landowners like the Sacketts will thus be able to make use of and develop their lands without worrying so much about federal regulators. They will still be subject to state and local regulation, however, and in many places such regulatory restrictions may remain significant. State and local governments began regulating wetlands before the EPA and Army Corps did, and many will continue to do so.
While the decision cuts back on the definition of "the waters of the United States" for purposes of the entire CWA, the decision will not necessarily have the same effect on traditional pollution control efforts. This is due, in part, to the Supreme Court's decision in Maui v. Hawaii Wildlife Fund, in which the Court upheld a somewhat broad interpretation of what constitutes a "discharge" of pollutants, such that some activities that result in the contamination of regulable waters may be subject to regulation even if they occur on lands that are not themselves subject to CWA regulation.
For the Biden Administration, however, the decision will definitely require yet another redo of the EPA and Army Corps' WOTUS regulations. Not only has the Supreme Court adopted a fairly proscriptive definition of the Act's relevant provisions, it has (yet again) indicated that this is not the sort of question on which the justices believe courts should defer to agencies. There is no mention of Chevron in any of the four opinions. Other than Justice Kavanaugh's reference to consistent agency interpretations of what constitutes adjacency, there is little invocation of agency expertise or a need to defer. For most of the justices, this case (perhaps like the Chevron case, Loper Bright, on deck for next term) concerns the scope of an agency's authority, and that is not the sort of question upon which courts should defer.
As suggested above, how much wetlands are regulated going forward will depend substantially on the choices made by state and local policy makers. Further, this decision may encourage greater consideration of non-regulatory wetland conservation measures, such as the various incentive-based programs administered by the Departments of Agriculture and Interior. Much as Congress turned to fiscal tools to address greenhouse gas emissions after West Virginia v. EPA, we could see a similar shift for wetlands conservation in the wake of Sackett.
In terms of the opinions themselves, I cannot help but note that multiple opinions reference the history of water pollution in this country, both before and after enactment of the CWA, and the inaccuracies abound. Most striking (to me at least) was Justice Kagan's invocation of the 1969 Cuyahoga River fire as evidence that water quality concerns had reached "crisis proportions" before the CWA was adopted. This is balderdash. As I have chronicled (at length), river fires were a common problem in the late 19th and early-to-mid 20th century. The 1969 Cuyahoga fire was the last such fire, not the first (let alone the first on the Cuyahoga). Whereas river fires had once been common, they had been controlled by state and local action well prior to enactment of the CWA.
Both Kagan and Alito want to credit the CWA with improvements in water quality over the past fifty years, but here too they may be overstating the case. While the CWA no doubt contributed to many water quality improvements over the past half century, it is well-established that water quality was improving prior to the law's enactment. Further, while Justice Alito wants to call the Act "a great success," contemporary assessments are more muted, particularly given the CWA's failure to effectively control nonpoint source pollution. For my own take on this question, and citations to some of the relevant literature, see my introductory article to our CWA at 50 symposium published in the Case Western Reserve Law Review.
For more on this case here are some of my prior posts on the decison below, the cert grant, previewing and reviewing the oral argument. And here is an article I wrote on wetlands regulation in the wake of the Sacketts' first trip to the Supreme Court.