First Up in the Supreme Court Crosshairs: The Clean Water Act

The oral argument in Sackett, the case that kicked off the United States Supreme Court’s current term, made history when Ketanji Brown Jackson debuted as the court’s first black female justice.  The court’s decision in Sackett could make history in another way: by dramatically shrinking the scope of the federal Clean Water Act (CWA).  

“It wouldn’t be hyperbole to call [Sackett] the most important water-related U.S. Supreme Court case to come along in a generation,” the Natural Resources Defense Council (NRDC) argues on its web site.  “Indeed, the outcome of Sackett . . . will determine the future efficacy of the CWA by deciding whether wetlands are—or aren’t—deserving of federal protection.”

At its simplest, the case asks whether a couple needs a federal permit to dump fill on a small lot in a northern Idaho housing development near Priest Lake.  But it also offers conservative justices an opportunity to strike a blow at the much-reviled “administrative state.”

Some people certainly hope it does strike that crippling blow.  An article about the case on the website of the pro-property-rights Pacific Legal Foundation – one of whose lawyers represented the Sacketts before the Supreme Court — is headlined “Sackett v. EPA: Regulatory Agencies Gone Rogue.”  The article begins, “’[f]rom time to time,’ Ronald Reagan said in his first inaugural address, . . . ‘we’ve been tempted to believe that society has become too complex to be managed by self-rule’ and that ‘government by an elite group is superior to government for, by, and of the people.’” 

The article continues, “That is precisely the justification we frequently hear for today’s administrative state—including federal agency actions that upset the Constitution’s separation of powers and shrink individual liberty.”

Sackett gives the court a chance to take another step down the path — on which it started 21 years ago — of chipping away at the scope of federal authority to regulate water quality.

The oral argument was short on ideological rhetoric, long on down-in-the-weeds details. Some of the questions the justices raised were technical: When is – or isn’t – a wetland “adjacent” to navigable waters?  Must a wetland actually touch navigable water in order to be “adjacent” or is merely being close good enough?  And if the answer is “close,” then how close is close enough?  There were no clear answers. And there’s more. What is a “significant nexus” between wetland and open water?  How does one define “significant”?  How many molecules of a pollutant would have to make their way into a body of navigable water to qualify?  Again, the answers weren’t clear.

Other questions were pragmatic (albeit with clear ideological implications): How is a landowner to know that a building lot requires a wetlands dumping permit?  Yes, an agency won’t charge to give an opinion on whether or not a site requires a permit, but this is not a do-it-yourself proposition: you probably won’t get that far without hiring a consultant who will charge thousands of dollars.  In his 2006 Rapanos plurality opinion (more about that important case later), the late Justice Antonin Scalia wrote that “[t]he average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.”

Some justices noted that the EPA could impose hefty criminal and civil penalties.  The Principal Deputy Solicitor General arguing the government’s case, Brian Fletcher, said yes, that’s true, but in practice the agency doesn’t do that.  Whether or not that response is reassuring depends on your point of view.

Fletcher did make it clear that federal agencies can’t regulate unless the site in question is a “water” as commonly understood, or a wetland.  Mere standing water or a high water table – as justices Thomas and Barrett brought up from their experiences growing up in Georgia and New Orleans – don’t qualify.  Nor does “non-point-source” pollution, such as the runoff from roads, parking lots and over-fertilized lawns that contributes so much crap to the waters of Puget Sound.  State and local governments can regulate such examples – or try to regulate – that, but the CWA doesn’t reach that far.

The Act, passed over President Richard Nixon’s veto in 1972 (October 18 marked the 50^th anniversary of its passage), has clearly accomplished a lot, even if it needs a reboot.  In a Rapanos dissent, then-Justice John Paul Stevens noted that “Congress passed the Clean Water Act in response to wide-spread recognition—based on events like the 1969 burning of the Cuyahoga River in Cleveland—that our waters had become appallingly polluted. The Act has largely succeeded in restoring the quality of our nation’s waters. Where the Cuyahoga River was once coated with industrial waste, ‘[t]oday, that location is lined with restaurants and pleasure boat slips.’”

The original act applied to “navigable water.”  But the notion that protected waters must literally be “navigable” has long since fallen by the wayside, and the notion that certain non-navigable damp places are governed by the act grew exponentially in the late 1970s and 1980s.

On one hand, you can view this expansion as a product of science and common sense.  Or you can view it as an example of the administrative state’s endless self-aggrandizement (and a violation of common sense).

The court started pushing back against an expansive view of the CWA in  2001. That year’s SWANCC decision concerned a group of solid waste utilities in the Chicago area that wanted to dump fill on an old sand and gravel pit where old excavations had become filled with water that attracted migrating birds.  The water was completely isolated; it didn’t connect to any lake or river or to any wetland with such a connection.  But the U.S. Army Corps of Engineers had established a “migratory bird rule” under which the presence of migrating birds created a nexus to interstate commerce that justified federal jurisdiction.  

That rule was established in 1986, a year after SCOTUS, deferring to agency expertise and citing failed Congressional attempts to limit the scope of the CWA, confirmed that “navigable waters” didn’t really mean, like, navigable, and further that any wetland “adjacent” to such waters was covered by the act.  But by the 2000s, the court had changed – Scalia had joined it in 1986 – and its approval wasn’t guaranteed.  Indeed, by a 5-4 vote, the court ruled that birds or no birds, the flooded sand and gravel mine didn’t qualify for CWA protection.

The next big case in this line was the 2006 Rapanos decision, which included several properties that were tenuously connected to wetlands that were connected to streams that were connected to rivers that flowed eventually into Lake Huron.  They were connected by man-made ditches and drains. 

The court split.  Four justices voted against the government.  Four filed dissents.  And one, Justice Kennedy, stood squarely in the middle, arguing that the case should be remanded to a lower court because the feds hadn’t clearly established the necessary “significant nexus” between the properties and wetlands or bodies of water that could themselves be regulated.  Kennedy’s “significant nexus” idea has persisted — even though Kennedy was speaking for no one but himself.  Now the looming Sackett decision may scrap it entirely.  

In his four-person plurality opinion on Rapanos, Scalia embraced his opportunity to rail against the over-reaching administrative state. In deciding whether or not to “grant or deny a permit,” Scalia said, “the U. S. Army Corps of Engineers exercises the discretion of an enlightened despot.”

Then along came Sackett.  This year marks the second time Sackett has come along, the first being way back in 2012.  (That was when it first reached the Supreme Court; the case actually began in 2007.) When the Sacketts bought their .62-acre lot in an Idaho development, it had a sewer hookup and a street address.  Houses stood on two sides of the property.  Streets ran along the other two. Nevertheless, the EPA identified it as a wetland. 

There is no question that wetlands – many of which have been drained or filled in the name of progress —  are, as the NRDC points out, “hugely important. In the words of the EPA, they ‘are among the most productive ecosystems in the world, comparable to rainforests and coral reefs.’ By regulating water flow, they can dramatically lessen the impact of both floods and droughts. They provide habitat for all manner of fish, birds, mammals, insects, reptiles, and amphibians. And they do all of these things while storing massive amounts of carbon in their abundant vegetation—making safeguarding wetlands a valuable natural climate solution.”  

The question of law was whether or not the Sacketts had bought a wetland that federal agencies had legal authority to regulate.  That depended on whether the lot was connected to more broadly recognized “waters of the United States.”  EPA argued that it was.  Allegedly, water from the Sacketts’ lot ran underground, beneath a road, to a drain, to a tributary, to a larger stream, and then to nearby Priest Lake.

The Sacketts had gotten a load of fill dumped on the property.  The EPA had said they had to stop, remove the fill, and get a permit.  If they kept going, penalties could reach $75,000 a day.  Oh, and because there was no final action, merely a compliance order, they couldn’t contest any of this in court.  

The legal issue was therefore whether or not the Sacketts could even sue.  The court ruled 9-0 that they could.  In the unanimous opinion, Scalia wrote, “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”

But when they did sue, the Sacketts lost at lower levels. This time around, the Supreme Court will decide on the merits whether a 9^th Circuit ruling against them should be overturned.  

The Sacketts’ Supreme Court brief zeroes in on the alleged lack of clarity about what can be regulated.  It argues that “the Sacketts’ ordeal is emblematic of all that has gone wrong with implementation of the CWA following this Court’s attempt in Rapanos v. United States to adopt a workable standard for delimiting the Act’s reach. The years of confusion since Rapanos have shown that citizens, the lower courts, and EPA need at long last a clear and definitive articulation of the Act’s scope.

But that articulation cannot be the “significant nexus” test from Justice Kennedy’s concurring Rapanos opinion, which the Ninth Circuit applied to affirm EPA’s jurisdiction, and which EPA is now proposing to codify. As Justice Scalia observed in his Rapanos plurality opinion, even on paper, the ‘significant nexus’ test amounts to a ‘flouting of statutory command.’ And as he accurately foresaw, because that test is ‘perfectly opaque,’ it ‘is not likely to constrain an agency whose disregard for the statutory language has been so long manifested.’” 

During oral arguments, the Sacketts’ attorney, Pacific Legal Foundation lawyer Damien Schiff, offered a much narrower view of the law.  Responding to a question from Clarence Thomas, he argued that “mere adjacency itself cannot justify the agency’s statutory jurisdiction for a number of reasons. The text of the statute says . . . that if it’s not even a water, it can’t even be regulated. And the plain meaning of ‘water,’ as elucidated by dictionary definitions and what-have-you, is not — [it] is streams, creeks, rivers, what-have-you, not wetlands.“

Responding to Sonia Sotomayor, Schiff argued that “the significant nexus test is
so problematic. It’s hard to imagine any statutory system in the federal code that  requires a potentially regulated party to initiate a rather expensive and time-consuming process just to find out whether, in fact, one is regulated.”

The case could be decided narrowly, but the implications are as broad as the court wants to make them. 

In Rapanos, Scalia’s rhetoric went far beyond the details of the individual case.  “The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act…,” he wrote, “during the  past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning.”

True, the court heard Rapanos 16 years ago, and Scalia has since died.  But the three justices who joined in his plurality opinion – Alito, Thomas, and Chief Justice John Roberts – are still very much alive.  Can they bring two more justices to their point of view?  Will they try?

 Will the tendency of the conservative majority to make a decision much broader than the case requires – as it did by scrapping Roe and Casey when it decided Dobbs – show itself here?  Or will the current hand-wringing over the court’s loss of legitimacy push the justices toward restraint?

Justice Alito said, “this case will have — may have– an important nationwide
effect.“  Alito – the take-no-prisoners author of Dobbs – may be just the guy to make that happen.