The United States Supreme Court has made it more difficult for the federal government to oversee water pollution by issuing a decision that removes protection from wetlands isolated from larger bodies of water.
Thursday’s ruling is the second decision in as many years to narrow the reach of federal environmental regulations. The court’s conservative majority increased property rights over clean water concerns.
The judges ruled in favor of a couple who wanted to build a home near Priest Lake in the Idaho panhandle. Chantell and Michael Sackett objected when federal officials identified a swampy portion of the site as wetlands and required them to obtain a permit before building.
By a vote of 5 to 4, the court said wetlands should only be regulated if they have “continuous surface connection” to larger, regulated bodies of water.
The court dropped their former colleague Anthony Kennedy’s 17-year opinion that allowed regulation of wetlands that have a “significant connection” to larger waterways.
Kennedy’s opinion had been the benchmark for evaluating whether wetlands were covered by the Clean Water Act (CWA) of 1972. Opponents had objected that the standard was vague and unworkable.
In the majority opinion released on Thursday’s ruling, Judge Samuel Alito wrote that the U.S. Environmental Protection Agency (EPA) exceeded the powers of the CWA in regulating all wetlands.
While the CWA was hailed as a “great success” that led to the cleanup of seriously polluted rivers and lakes, the conservative justice said its vague mandate was an “unfortunate footnote.”
“The law applies to ‘the waters of the United States,’ but what does that expression mean? Does the term encompass any backyard that is waterlogged enough for a minimal period of time? Alito asked.
Environmental advocates predicted that narrowing the scope of that law would strip protection from more than half of the country’s wetlands.
Commenting on the decision, Manish Bapna, the CEO of the Natural Resources Defense Counsel, called on the US Congress to amend the CWA to restore wetland protections and called on states to strengthen their own laws.
“The Supreme Court has ripped the heart out of the law we depend on to protect U.S. waters and wetlands,” Bapna said in a statement. “The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable damage. Communities across the country will pay the price.
At the White House, press secretary Karine Jean-Pierre said the decision “is designed to set our country backward. It will jeopardize the sources of clean drinking water for farmers, businesses and millions of Americans.”
Jean-Pierre said President Joe Biden will use “every legal authority at his disposal” to ensure that Americans have access to clean drinking water.
The outcome will almost certainly affect pending litigation over new wetlands rules introduced by the Biden administration in December. Two federal judges have temporarily blocked enforcement of those rules in 26 states.
Scientists say protecting wetlands, which naturally cushion the planet’s warming, is key to fighting climate change.
But in Thursday’s ruling, all nine justices agreed that the wetlands on the Sacketts’ property are not covered by the law. Yet only five justices joined the majority opinion and imposed a new test to assess when wetlands fall under the CWA.
Conservative Brett Kavanaugh and the court’s three liberal justices accused their colleagues of rewriting the law with their opinions.
“The Court’s erroneous test will not only have real-world implications for United States waters, but is also sufficiently novel and vague (at least as a single standalone test) that it could create regulatory uncertainty for the federal government, the States and regulated parties,” Kavanaugh wrote.
Judge Elena Kagan wrote that the majority’s rewriting of the law was “an effort to halt anti-pollution actions that Congress deemed appropriate.” Kagan was referring to last year’s decision to limit the regulation of greenhouse gas emissions under the CWA.
In both cases, she noted, the court had appointed itself as the national decision-maker on environmental policy. Kagan was joined, in her opinion, by her liberal colleagues Sonia Sotomayor and Ketanji Brown Jackson.
Thursday’s decision is part of an ongoing trend. Since former President Donald Trump appointed the last of his three Supreme Court justices in 2020, the Supreme Court has had a solid conservative majority, allowing for regulatory overturns and right-wing priorities.
Those priorities included overturning the constitutional right to abortion, which the court ordered last year.