Rachel Frazin and John Kruzel
The Supreme Court on Monday will hear arguments of a case between Idaho landowners and the Environmental Protection Agency (EPA), a dispute that could redefine the scope of the country’s clean water regulations.
The first case of the justices’ new term, landing just ahead of the Clean Water Act’s 50th anniversary, will feature arguments about wetlands and when they can or cannot be regulated by the federal government.
Although technical in nature, the legal dispute could have broad implications for the country’s water quality if the 6-3 conservative majority court uses the case to narrow the EPA’s regulatory reach.
“If that’s what the Supreme Court should decide, we’re basically rolling back the clock 50 years,” said Rep. Peter DeFazio (D-Ore.), who chairs a House panel on water resources and the environment. “That would remove 50 percent of our critical wetlands, and 70 percent of our rivers and streams from federal protection.”
The case began in 2007 when Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it contained wetlands, prompting the Sacketts to sue.
A federal court, siding with the U.S. government, ruled that the wetlands on the Sacketts’ property contained a “significant nexus” with other regulated waters, meaning the couple would need authorization to build there.
The Sacketts are now urging the Supreme Court to discard the “significant nexus” threshold. Instead, their petition favors a separate test from former Justice Antonin Scalia that called for the waters to have a “continuous surface water connection” — a higher threshold that would apply to fewer wetlands.
The stakes of this case, however, go far beyond one property dispute. It attracted briefs from environmental groups, which argue that it would hamper the government’s ability to keep people safe from pollution, as well as industries like farming, mining, construction and oil and gas, which support the deregulatory effort.
“This is a very, very, big deal for the Clean Water Act. It will determine, likely, whether the Clean Water Act can protect half of the water bodies in the country, and if it can’t, meeting the water quality goals of the law that we all count on will be virtually impossible,” said Jon Devine, who leads the Natural Resources Defense Council’s federal water policy team.
The case appears to mirror regulatory differences between the Trump administration’s efforts to limit regulations to just wetlands with continuous surface water connections to other regulated waters, and the Obama administration’s regulations, which applied the significant nexus test.
The Biden administration has proposed to regulate some wetlands that meet the significant nexus standard.
And while the Sacketts’ petition to the court appears to be in support of the continuous surface water test, in their opening court brief, they propose a separate test.
They say that a wetland should be “inseparably bound up” with another regulated water and also subject to Congress’s authority over interstate waters.
Damien Schiff, a lawyer representing the Sacketts said that abiding by the Clean Water Act can be significantly burdensome, both in the application process itself and in the requirements to mitigate environmental damage.
“Whenever the Clean Water Act applies, it does add a significant financial burden, not just because there is a lot of costs involved in the application process … but also just simply the cost of compensatory mitigation,” said Schiff, a senior attorney at the Pacific Legal Foundation.
He said that the Army Corps of Engineers “might very well issue a permit, but typically not only is the permit issued for a much smaller project than was originally requested but it’s always accompanied by a pretty significant compensatory mitigation obligation and that can run into the hundreds of thousands if not millions of dollars.”
A looser test would be expected to apply to fewer wetlands, allowing individuals and corporations to act there without EPA oversight.
Under the current system, many polluters are also not necessarily blocked from carrying out activities in regulated waters.
Instead, they may need to either apply for a permit that contains stipulations that they follow environmental safeguards, or follow existing stipulations in a “general permit” that gives a blanket waiver to certain activities.
But environmentalists say that while pollution still occurs when permits are in place, the stipulations they offer are important for averting the worst damages.
“This case is not about prohibiting construction or development, it’s about what safeguards are in place when someone does so,” Devine said.
Environmentalists say that this pollution may end up in America’s drinking water and also harm fish that people catch for consumption. And while many public water systems are treated to prevent pollution, some people get their water from private wells, which may not get the same level of treatment.
“Drinking water does have standards, but that doesn’t mean that all those standards are perfect and the pollution that comes in through those sources means more cost of treatment. It means that people who live on wells or in areas where the water treatment systems aren’t as big or fancy or as expensive are going to suffer,” said Sam Sankar, senior vice president of programs at Earthjustice.
Sankar said his organization has 18 tribes as clients, and many of them will face “direct impacts.”
The court began its work Monday after an epochal term in which the six Republican-appointed justices advanced an aggressive conservative legal agenda.
The case will be the first that is heard by Ketanji Brown Jackson in her tenure as a Supreme Court justice.
Although overshadowed by the court’s overruling of Roe v. Wade, last term saw the court vote 6-3 to pare back federal agency power in West Virginia v. EPA, a case that reined in the government’s authority to regulate carbon emissions from power plants.
Court watchers believe the conservative majority court will continue its rightward trajectory this term.
“There’s no reason to think this coming term, or any term in the foreseeable future, will be any different,” Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute said recently. “On things that matter most, get ready for a lot of 6-3s.”