Supreme Court Curtails EPA’s Ability to Limit Water Pollution

By Jacob Gardenswartz

Special to the Wyoming Truth

WASHINGTON — The U.S. Supreme Court on Thursday moved to limit the ability of the Environmental Protection Agency (EPA) to regulate pollution in American wetlands, finding that the Clean Water Act gives the government less autonomy to control runoff into certain waterways.

The ruling, which came after an Idaho couple’s 15-year legal dispute over whether they could build a house on an empty lot near a large lake, marks a major setback to the Biden administration’s climate policy, and could complicate ongoing legal battles over further efforts to manage water pollution.

Though the justices were unanimously in agreement on the outcome — that Mike and Chantell Sackett’s land did not fall under the purview of EPA regulation — they nonetheless differed on the reasoning behind it.

Conservative Justice Samuel Alito, writing for the 5–4 majority, found that the water law could only be applied to “wetlands with a continuous surface connection” to bodies of water, such that those smaller bodies were “indistinguishable” from the larger waters themselves. The wetlands on the Sacketts’ property were “distinguishable” from Priest Lake, the nearby waterway, and thus they should be allowed to begin construction, Alito wrote.

But the Court’s three liberals were joined by Justice Brett Kavanaugh in a concurring opinion arguing that though the Sacketts’ proposed property was to be allowed, the new test established by the Court to determine whether wetlands fell under federal control could have grave and lasting implications on the quality of the nation’s waters.

“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,” Kavanaugh wrote.

“[T]he Court’s atextual test… will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty,” he concluded.

Wyoming celebrates, White House scorns

Wyoming’s three-person congressional delegation – and Republicans in Washington more broadly — celebrated the ruling as a win for personal liberty and deregulation.

“The Supreme Court ruled once again to rein in an out-of-control Environmental Protection Agency,” Sen. John Barrasso (R-Wyo.) said in a statement Thursday. “This ruling is a big win in our fight to stop federal overreach and protect Americans’ private property rights.”

“This court ruling is a win for the hardworking farmers, ranchers, businesses and landowners of Wyoming who desperately needed regulatory clarity when it comes to [Waters of the U.S.],” echoed Sen. Cynthia Lummis (R-Wyo.) in her own statement. “An irrigation ditch is not navigable water, and the Supreme Court agrees with that statement.”

Rep. Harriet Hageman (R-Wyo.), a water rights attorney who was a driving force behind Congress’s unsuccessful attempt to overturn a recent Biden administration water regulation, was downright joyous at the outcome.

“Today is a great day for Wyoming, a great day for private property rights, a great day for farmers and ranchers but it’s kind of a sad day for unelected bureaucrats who think they ought to be able to dictate how we can use our land, our property and our water,” Hageman said, standing in front of the Supreme Court in a video posted to Twitter.

President Joe Biden, meanwhile, lashed out at the Court in a statement, decrying the “disappointing” decision which “upends the legal framework that has protected America’s waters for decades” and “also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes.”

And environmentalists throughout the country were similarly dismayed. Ben Jealous, executive director of the Sierra Club, called the Court’s decision “profoundly wrong and directly at odds with the statute Congress enacted 50 years ago.” Sam Sankar, senior vice president for programs at Earthjustice, argued that the ruling “call[s] into question virtually any modern environmental regulation.”

“Polluters will certainly read this as an indication it’s open season on environmental law,” he added.

What comes next?

With the Court having established a new test to determine what qualifies as a “navigable” water of the U.S., Biden’s proposed regulations expanding such definition are in legal limbo.

“Our legal team… is carefully reviewing the decision. And we’ll have more to say on this soon,” White House Press Secretary Karine Jean-Pierre said Thursday. “But know this: that President Biden will use every legal authority available to him to ensure Americans in every state have clean water.”

But in all likelihood, the only chance the administration has to push forward with their plan is to turn to Congress, the branch of government originally behind the 1972 law in question. Some Democrats have called for new legislation to enable the expanded definition, though finding the votes to do so with the House under GOP control will be all but impossible.

Meanwhile, some others have argued for the opposite — legislative language to codify the EPA’s limited powers.

“It is time for Congress to pass legislation that clearly defines [Waters of the U.S.] and gives the EPA no room to engage in blatant regulatory overreach again,” Lummis said.