The Meaning of Water: Justice Alito Gets his Bulldozer Out (Again)

The Supreme Court has done it again.  Faced with a case that could have been decided narrowly, the majority has taken the opportunity to upend  another precedent.

Last month’s Sackett ruling changed an interpretation of the Clean Water Act (CWA) that dated from the presidency of George W Bush.  

President Joe Biden said the Court’s ruling “puts our Nation’s wetlands — and the rivers, streams, lakes, and ponds connected to them — at risk of pollution and destruction.”  Biden called the decision ”disappointing.”  “The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands,” said Manish Bapna, president and CEO of the Natural Resources Defense Council (NRDC),

The underlying facts are less than dramatic: Nineteen years ago, the Sacketts bought a lot in a housing development near Idaho’s Priest Lake.  They had fill dumped onto the lot so that they could build there.  The EPA said the lot was a wetland protected by the Clean Water Act (CWA).  The agency found that the lot had an underground connection to an un-named stream across the road that drained into Kalispell Creek, and that creek drained into the lake. 

That, combined with the Kalispell Bay Fen across the road, created a “significant nexus” — which the Supreme Court had recently said was the decisive legal test — between the lot and the lake.  The agency told the Sacketts to remove the fill and threatened them with fines of more than $40,000 a day.  The pro-property-rights Pacific Legal Foundation took their case.

The court could have simply let the Sacketts build on their lot and called it a day.  The Pacific Legal Foundation presumably hoped for something broader.  Justice Samuel Alito clearly did too.

Alito’s opinion didn’t come out of the blue.  “[W]e hold,” he wrote, “that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable’ from those waters.” Forget the earlier precedent of the “significant nexus” test. 

Alito explained that “significant nexus” — which was case-specific and could often be determined only by experts — was too imprecise for a statute that could be the basis for criminal prosecution. (An EPA lawyer had said the agency never actually prosecuted people criminally, but that was largely irrelevant.)

Alito was quoting a plurality opinion in the court’s Rapanos decision of 2006 – just recycling the language he signed onto back then.  

The Rapanos court was evenly divided on a CWA case.  Four justices said one thing, four justices said another.  The man in the middle, Justice Kennedy, came out with the “significant nexus” test, which paved the way for a majority decision.  But it now seems that the losing side didn’t put aside their arguments.  The late Justice Antonin Scalia wrote one of the plurality opinions — the one that Alito quoted in Sackett.  Scalia was joined by Alito, Chief Justice Roberts, and Clarence Thomas.  Now, the three of them have found enough allies to make a majority.  And Scalia’s opinion has become the law of the land.

Not all the justices thought that was a good thing.  “[T]he Court substitutes its own ideas about policymaking for Congress’s . . .,” Justice Kagan wrote. “The Court, rather than Congress, will decide how much regulation is too much.” 

Of course, the court’s members disagreed about what Congress meant.   Kagan and Kavanaugh both made much of the distinction between “adjacent,” which a much different court approved in 1986, and “adjoining,” which Alito takes as the necessary juxtaposition of wetlands and open water.  

Congress could, of course, just pick an adjective to clarify the necessary distance.  But this Congress?  You know that’s not gonna happen.  

And agreeing on the meaning of “adjacent” wouldn’t resolve the dispute.  Alito skewers Kagan and Kavanaugh – rudely – for not analyzing the text that really mattered.  These arguments are more than unfounded,” Alito wrote.  The two opinions “pay no attention whatsoever to . . . the key statutory provision that limits the CWA’s geographic reach to the ‘waters of the United States.’  Thus, neither separate opinion even attempts to explain how the wetlands included in their interpretation fall within a fair reading of   ‘waters.’ Textualist arguments that ignore the operative text cannot be taken seriously.”

And Alito was all about the text – or at least his interpretation of it.  “The EPA . . . advances various policy arguments,” he wrote, “about the ecological consequences of a narrower definition of adjacent. But the CWA does not define the EPA’s jurisdiction based on ecological importance, and we cannot redraw the Act’s allocation of [regulatory] authority. “

Disagreeing about the meaning of “waters” is hardly new. The Congressional Research Service explained four years ago that the Clean Water Act “redefined ‘navigable waters’ for purposes of the Clean Water Act’s jurisdiction to include ‘the waters of the United States, including the territorial seas.’ Disputes over the proper meaning of that phrase have been ongoing since that change.”

Justice Thomas certainly has an opinion about the proper meaning.  Thomas agreed with everything Alito said, but suggested he would go further:  He wrote that “like the Rapanos plurality . . . , 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.”  

His logical endgame would be to question the constitutionality of covering “waters” that aren’t water and “navigable waters” that can’t be navigated. As the Congressional Research Service has explained, “[f]ederal authority to regulate waters within the United States primarily derives from the Commerce Clause, and accordingly, federal laws and regulations concerning waters of the United States cannot cover matters which exceed that constitutional source of authority. During the first two decades after the passage of the Clean Water Act, courts generally interpreted the act as having a wide jurisdictional reach. In recent decades, however, the Supreme Court has emphasized that ‘the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited.”

Ditto, evidently, its deference to agency expertise.  In 1986, a unanimous court said it would follow the doctrine of deferring to agencies’ expertise in interpreting their own ambiguous statutes unless their interpretations were unreasonable.  (This deference stems from the “Chevron doctrine,” which the court created in 1984.) The justices accordingly deferred to the EPA and Army Corps of Engineers’ interpretation that “navigable” didn’t mean you could navigate it and “waters” could apply to more-or-less dry land.  Arguably, the current court just finds the EPA’s broad interpretation unreasonable.  Also arguably, the era of deferring to agency expertise is nearing an end. Do “the waters” now have to be truly navigable for Congress to regulate them?  Not yet.  But in the future?  Who knows.

Some small-government conservatives hoped that the decision would strike a blow against the much-reviled “administrative state.”  By restricting the EPA’s regulatory reach and by not deferring to agency expertise, maybe the new decision has.  This court may take more steps in that direction. 

But as for really doing away with the monster?  Come on.  The framers certainly didn’t envision anything like the administrative state, but then they presumably didn’t envision a nation with more than 330 million people, an economy worth $25 trillion, an endangered species list with more than 1,300 unlucky members.  Who can hold all that together without this cumbersome state?  Elon Musk?  It’s just not plausible.

But what will the administrative state be allowed to do?  Before the decision, the NRDC said, “the outcome of Sackett . . . , will determine the future efficacy of the CWA by deciding whether wetlands are—or aren’t—deserving of federal protection.”

True, but. Kagan and some outside commentators have invoked the dire conditions that led Congress to pass the CWA in the first place, not least when Ohio’s Cuyahoga River caught fire. Hard to argue with that origin.  But also . . . come on, folks: leaving the states to regulate some wetlands won’t set the Cuyahoga on fire again.

Sackett also won’t keep Washington or other states from regulating all the wetlands they choose.  Some will choose to regulate a lot. Others won’t.  This will presumably deepen yet another red-state-blue-state divide. 

Again, this case could easily have been decided narrowly.  The decision would have been unanimous.  In fact, the decision – the EPA couldn’t regulate the Sacketts’ lot – was unanimous.  The facts seemed pretty egregious.  Not one justice sided with the EPA.  All agreed that “[t]he wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.”

But the majority didn’t want a narrow decision.  Sackett offered an opportunity those justices couldn’t pass up. Will Alito and his colleagues seize more opportunities?  If the opportunities arise, they probably will.