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Supreme Court limits EPA’s power to address water pollution

The US Supreme Court.Alex Brandon/Associated Press

WASHINGTON — The Supreme Court on Thursday curtailed the Environmental Protection Agency’s authority to police millions of acres of wetlands, delivering another setback to the agency’s ability to combat pollution.

Writing for five justices, Justice Samuel Alito said that the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have “a continuous surface connection” to those waters.

The decision was a second major blow to the EPA’s authority and to the power of administrative agencies generally. Last year, the court limited the EPA’s power to address climate change under the Clean Air Act.


Experts in environmental law said the decision would leave many wetlands subject to pollution without penalty, sharply undercutting the EPA’s authority to protect them under the Clean Water Act.

“This is a really disastrous outcome for wetlands, which have become absolutely vital for biodiversity preservation and flood control,” said Patrick Parenteau, a professor at Vermont Law School.

Kevin Minoli, who worked as a senior EPA lawyer from the Clinton through the Trump administrations, overseeing the enforcement of Clean Water Act regulations, said the decision would have enormous practical consequences and estimated that it would affect more than half the nation’s wetlands.

“If you’re in an area with a lot of wetlands but those wetlands are not directly connected to a continuously flowing water body, then those wetlands are no longer protected by the Clean Water Act,” he said.

The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement about a new test the majority established to determine which wetlands are covered by the law.


Justice Brett Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the federal government’s ability to address pollution and flooding.

“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “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.”

In a second concurring opinion, Justice Elena Kagan, referring to the court’s decision in June to curtail the EPA’s ability to restrict power plant emissions, criticized the majority’s interpretation of the law.

“There,” she wrote, “the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”

The ruling was also another example of the court’s skepticism of the authority of administrative agencies, said Jonathan H. Adler, a law professor at Case Western Reserve University. “The current court,” he said, “is clearly unwilling to defer to an agency about the scope of that agency’s own power.”

Michael Regan, administrator of the EPA, said the agency would consider next steps. “I am disappointed by today’s Supreme Court decision that erodes long-standing clean water protections,” he said in a statement.

The case, Sackett v. Environmental Protection Agency, concerned an Idaho couple, Michael and Chantell Sackett, who sought to build a house on what an appeals court called “a soggy residential lot” near Priest Lake, in the state’s panhandle.


After the couple started preparing the property for construction in 2007 by adding sand gravel and fill, the agency ordered them to stop and return the property to its original state, threatening them with substantial fines. The couple instead sued the agency, and a dispute about whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the suit could proceed.

In a concurring opinion at the time, Alito said the law gave the agency too much power.

“The reach of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”

On Thursday, all nine justices agreed that the agency had gone too far in seeking to regulate the Sacketts’ property.

“I agree with the court’s bottom-line judgment,” Kavanaugh wrote, “that the wetlands on the Sacketts’ property are not covered by the act and are therefore not subject to permitting requirements.”

That suggested that the court could have issued a far more limited ruling, Parenteau said.


“They could have rendered a narrow decision based on the facts of the Sackett case and said, in this case, where a wetland is this small and is not connected to the lake, it should not be subject to federal control.”

Instead, he said, the majority “fashioned a policy for the entire United States based on this one particular set of facts of this property in northern Idaho.”

The two sides on Thursday differed principally on the Clean Water Act’s coverage of wetlands that are “adjacent” to what the law calls “waters of the United States.”

That second term, Alito wrote, “was decidedly not a well-known term of art” and a “frustrating drafting choice.” He said it included “streams, oceans, rivers and lakes.”

But what does it mean for wetlands to be “adjacent” to such bodies of water? Alito wrote the term can mean “contiguous” or “near.” For purposes of the Clean Water Act, he wrote, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

The four justices in the minority took a different view.

“‘Adjacent’ and ‘adjoining’ have distinct meaning,” Kavanaugh wrote, adding that he would have included wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”

He added: “There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.”