Supreme Court’s Effort To Define ‘Water’ Unleashes Flood of Controversy

Justice Alito strikes again as the EPA suffers another stinging defeat before the high court.

Chip Somodevilla/Getty Images
Justice Samuel Alito at Georgetown University in 2016 at Washington, D.C. Chip Somodevilla/Getty Images

The Supreme Court’s unanimous decision in Sackett v. Environmental Protection Agency that, essentially, water means water, is another blow to the Biden administration’s view that the environmental agency has authority over nearly a whole continent of H2O.  

On the heels of West Virginia v. Environmental Protection Agency, from last year, Sackett suggests a sea change in how far the high court will let the EPA go in its regulatory push. The ruling that only those wetlands with “a continuous surface connection” to “navigable” bodies of water qualify for protection loosens the EPA’s regulatory grip considerably.     

The question that animates Sackett is a simple one. In 1972, Congress passed the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It is meant to apply to “the waters of the United States,” a dictum simple in sound but open to regulatory abuse.

The court’s majority opinion, written by Justice Samuel Alito, asks what that phrase means. It goes on to wonder whether it encompasses “any backyard that is soggy enough for some minimum period of time” or “ditches, swimming pools, and puddles?”

Justice Alito notes: “For most of this Nation’s history, the regulation of water pollution was left almost entirely to the States and their subdivisions.” That authority was seized with the Clean Water  Act, which the justice describes as a “potent weapon” due to its  “capacious definition of ‘pollutant,’ its low mens rea” — meaning knowledge of wrongdoing — “and its severe penalties.” The penalties it imposes can be “crushing.” 

The Clean Water Act bans the discharge of pollution into “navigable waters.” The EPA took this to mean any water that “could affect interstate or foreign commerce,” as well as wetlands “adjacent” to those waters, which could include “neighboring” tributaries. 

The challengers to this definition, Michael and Chantell Sackett, backfilled a small lot with rocks and dirt. The EPA alleged that their property was “adjacent” to protected wetlands — across the road was an “unnamed tributary” that fed into a non-navigable creek that spilled into Priest Lake, a navigable entity. They were ordered to “restore” the site or face up to $40,000 a day in fines.    

The EPA, surveying the entire hydraulic ecosystem at Bonner County, Idaho, found that the Sacketts had illegally dumped soil and gravel onto “the waters of the United States.” The Sacketts, who were aiming to build what Justice Alito calls a “modest home,” asserted that they had not touched the “waters of the United States.”

After a long litigation, the United States Court of Appeals for the Ninth Circuit, a liberal citadel, found against them. The high court, though, casts gimlet eyes on the EPA’s admission that “almost all waters and wetlands” are potentially susceptible to regulation. 

The phrase “waters of the United States,” Justice Alito writes, is “not a well-known term of art” and an “unfortunate drafting choice” that has spawned a flood of confusing interpretations. 

The court picks one, sourced from one of its prior opinions: “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.’” Justice Alito believes this definition is rooted in both common sense and precedent.  

The court rejects the EPA’s arguments that “waters” is “naturally read to encompass wetlands.” To refute that position, Justice Alito summons a hypothetical, urging readers: “Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as ‘waters.’” The EPA’s contention that “presence of water is ‘universally regarded as the most basic feature of wetlands'” falls on deaf ears. 

Justice Clarence Thomas, joined by Justice Neil Gorsuch, writes separately to remind that “federal authority does not displace States’ traditional sovereignty over their waters.” He writes: “Prior to Independence, the Crown possessed sovereignty over navigable waters in the Colonies, sometimes held in trust by colonial authorities,” sovereignty that was in turn passed to the states before being abrogated by the Constitution’s Commerce Clause.

Justice Thomas applauds the court’s decision as curbing a “serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation’s great commercial water highways,” but worries over the expansive Commerce Clause reading that made it possible. It appears likely to be much cited by conservatives in the future. 

Justices Kagan, Sotomayor, and Jackson concur with bite — they do not dissent only because they agree the Sacketts should not have been regulated under any regime. They write: “Vital to the Clean Water Act’s project is the protection of wetlands — both those contiguous to covered waters and others nearby.” They add that “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby.”

In language dripping with sarcasm, Justice Kagan writes, “Surely something has to be done; and who else to do it but this Court?” Her honor sees the opinion as motivated by a desire to “rescue property owners from Congress’s too-ambitious program of pollution control.” The court’s “pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.”

Justice Brett Kavanaugh, while agreeing that the EPA’s ancien régime went too far, would not have dismantled it to quite the extent that Justice Alito thinks required. He worries that “the court’s new test will have “significant repercussions for water quality and flood control throughout the United States.”

Most scathing of all, though, is Justice Kagan’s peroration, where she simply copy and pastes — changing just the name of the law under consideration — from her dissent in West Virginia. There, and here, she writes that the opinion is “not how I think our Government should work — more, because it is not how the Constitution thinks our Government should work.”

The New York Sun

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