15
Jun
Recent Supreme Court Ruling on Clean Water Act “will take our country backwards”
(Beyond Pesticides, June 15, 2023) The Supreme Court’s recent ruling in Sackett v. Environmental Protection Agency (EPA) on the Clean Water Act’s jurisdiction dramatically limits the EPA’s ability to protect critical wetland ecosystems. On May 25, in a 5-4 majority decision, the Supreme Court ruled that EPA has authority to protect only “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Wetlands must appear “indistinguishable” from larger waterways at a surface-level perspective. Wetlands next to a large waterway are no longer protected if they are separated by a manmade or terrestrial barrier. Water flows underground from upstream to downstream sources and exits the confines of its customary boundaries during periods of flooding, so to declare waterways distinct based merely on a surface-level perspective defies scientific understanding of ecosystem health.
Critical Nature of Wetland Ecology
The conservation of wetland ecology is critical to the health of our environment. The United States Geological Survey (USGS) states, “Wetlands are among the most productive habitats on earth” given their role in flood resilience, improvement in water quality, and coastal erosion control. Wetlands are essential nursery grounds for many species of fish and oases for migratory birds en route to their final destinations.
Not only are wetlands one of the most crucial ecosystems on the planet, but they are also particularly vulnerable to stressors such as habitat loss, pollution, and climate change. Both sea level rise and rapid human development are quickening the pace of their disappearance. Upstream runoff can carry destructive chemical pesticides and fertilizers that wreak havoc on downstream ecosystems. Many wetlands are brackish, meaning they are a mixture of fresh- and saltwater. When sea levels rise, coastal wetlands are inundated with massive amounts of seawater, throwing off their careful salt concentrations and spelling out death for organisms reliant on a narrow range of water chemistry.
History of Clean Water Act and Court Cases
Clean Water Act (CWA) has played an integral role in the preservation of environmental health over the last few decades. Prior to the passing of CWA, jurisdiction of the nation’s waterways was left in the hands of the states and very few regulations were imposed. The federal government finally took action after Ohio’s Cuyahoga River spontaneously caught fire in 1969 due to a substantial amount of pollution in the waters. Passed in 1972, CWA “aimed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” The law forbids “unpermitted discharges of pollutants to ‘navigable waters,’” which are defined as “the waters of the United States.” A few years later, authority was broadened to encompass waters “adjacent” to navigable waterways. CWA sets industrial wastewater standards, requires a strict permitting process regarding wetland development, and outlines safety limits for contaminant concentrations in drinking water. EPA and the Army Corps of Engineers are tasked with the protection of wetlands and enforcement of CWA regulations to defend water quality against polluting industries.
Despite the success of the CWA in improving the quality of waterways, decades-long debates have pitted politicians against each other over the ambiguity of exactly which “waters of the United States” fall under EPA jurisdiction. Under constitutional law, the legislative branch is granted the power to regulate interstate commerce. This detail found in Article I, Section 8, allows a federal agency (e.g., EPA) to impose waterway regulations within states since “navigable waters” play an important role in interstate commerce. Historically, wetlands neighboring a large waterway, despite an interrupted surface connection, were under EPA’s jurisdiction. Even the smallest creeks, however, run downstream to larger lakes and rivers, so many believe the original wording of CWA does not clearly portray the extent of the EPA’s authority. EPA and the Army Corps of Engineers often consider potential regulatory infractions on a case-by-case basis, but court cases in years since have attempted to clarify these uncertainties.
One such landmark case brought before the Supreme Court in 2006, Rapanos v. United States, highlighted key issues related to CWA’s scope in a case brought by a land developer. Half of the Court supported a broad interpretation of “waters of the United States” that includes smaller tributaries that eventually flow into larger bodies of water. The opposing justices, led by Justice Antonin Scalia, favored more limited EPA authority, arguing for the protection of what they referred to as only “traditionally navigable waters” or those “indistinguishable” from such. To qualify, neighboring tributaries would have to be “relatively permanent” bodies of water with a “continuous surface connection” or uninterrupted by any terrestrial barriers. A contentious case, the ruling concluded with a 4-1-4 plurality. The court finally decided on a resolution by Justice Anthony Kennedy, the concurring vote, in which he deemed EPA jurisdiction extending to “traditionally navigable waters,” as well as any U.S. waters serving as a “significant nexus,” meaning wetlands that “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of the navigable waters. Ambiguity, however, remained, as one could endlessly debate what qualifies as “significant.”
In 2015, the Obama administration took a position on the not fully defined language of the amended CWA. The administration’s stance, known as WOTUS (waters of the United States), and later the Clean Water Rule, asserts that any waterway active for at least part of the year (implying seasonally flowing or ephemeral streams) qualifies as a protected wetland and is therefore under EPA jurisdiction. EPA had spent years studying the effects of upstream pollutants on downstream waters and, based on its in-depth scientific reports, found that protecting all tributaries and wetlands is necessary to the preservation of the quality and health of larger waterways. This position generated immediate backlash, as the industrial, mining, and agricultural sectors, as well as property rights activists, fought the protection of seasonally active waterways. The rule was stayed in federal court as lawsuits began piling up in states around the country, and the administration looked to adjust the rule in response.
The statutory intent of CWA was then entirely turned upside down with the Trump administration. In a 2019 reversal of Obama-era protections, the Trump administration maintained that justices led by Scalia in the Rapanos case had gotten it right, limiting protections to tributaries with a direct surface connection to larger waterways.
In an attempt to compromise, the Biden administration set standards similar to those prior to 2015, falling between the broad protections of the Obama administration and the extremely limited protections of the Trump administration. This approach meshes “traditional navigable waters” with adjacent waterways, including “interstate waterways and upstream water sources that influence the health and quality of those waterways.” With this interpretation, a small land divide does not render two nearby wetlands separate. Environmentalists generally support this effort and affirm that this rule is “central to efforts to restore the health of impaired waterways and fragile wildlife habitats because it gives federal and state governments powers to limit the flow of pollutants, including livestock waste, construction runoff and industrial effluent.”
Present-Day Supreme Court Case
So now for the case at hand: Chantell and Michael Sackett, a couple beginning construction of a house on an area of wetlands near Priest Lake in Idaho, were alerted by EPA that their land fell under the protection of CWA. The Sackett’s disagreed with the EPA’s stance and took the issue to court. After the case made its way to the Supreme Court, the justices concluded that the Sacketts’ land did not fall under the protections granted by CWA and then curtailed the reach of the law by limiting CWA to larger bodies of water, such as lakes and oceans.
Objecting to the perspective of the majority, Justice Elena Kahan, joined by Sonia Sotomayor, Ketanji Brown Jackson, and Brett M. Kavanaugh, compares this case to one last year limiting EPA’s authority to limit greenhouse gas emissions under the Clean Air Act. In both cases, the Court voted to vastly limit the EPA’s jurisdiction, with dangerous implications for the future health and safety of people and the planet.
Consequences of the Ruling
The dissenting justices highlight the destructive effects this ruling will have on nationwide water quality and flood control, as EPA is now drastically limited in its “ability to extend protections to upstream waters in order to protect downstream water quality for drinking and wildlife.” Wetlands are a filtration system, trapping many pollutants and preventing them from traveling downstream into major waterways. Advocates say that this will cause broad adverse effects, from the Everglades to maintenance on the levee systems along the Mississippi River to cleanup projects along the Chesapeake Bay. According to some estimates, about 50% of wetlands will lose federal protection. The environmental law firm Earthjustice estimates that federal protections will be withheld from 118 million acres of wetlands.
President Biden has warned that the Supreme Court decision “will take our country backwards,” and assured the public he will continue to fight for clean water. In his statement, the President continued, “Today’s decision upends the legal framework that has protected America’s water for decades. It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s stream, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.” EPA Administrator Michael Regan said that the ruling has “ripped the heart out of the law.” The Natural Resources Defense Council cited the “incalculable harm” that will come of the decision.
Multiple legal observers predict that the two court rulings in the past year regarding the EPA’s authority under the Clean Water and Clean Air Acts may be the start of a pattern of restrictions on federal authority in the environmental sector. At a time when an immediate response to climate change and chemical pollution is more urgent than ever, these decisions are seen by environmentalists and public health advocates as undermining action necessary for a sustainable future by opening the door to widespread and unrestricted contamination of wetlands and waterways necessary to support life.
If you want to learn more about the dangers of water contamination, take a look at Beyond Pesticides’ webpage on Threatened Waters: Turning the Tide on Pesticide Contamination. Click here and here to read past articles Beyond Pesticides has written on the issue.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Sources: Supremecourt.gov
Wow! This blog is so well-written and informative! Really a great read!
June 15th, 2023 at 9:39 amThe recent Supreme Court ruling in Sackett v. EPA, which narrows the Clean Water Act’s jurisdiction, has alarming implications for our environment. By limiting EPA’s authority to protect wetlands with a continuous surface connection to larger water bodies, the ruling disregards the intricate interplay of ecosystems. Wetlands are crucial for flood resilience, water quality, and wildlife habitats, and their vulnerability to pollution and climate change makes this ruling particularly detrimental. This decision disrupts decades of progress in environmental protection and raises concerns about further restrictions on federal authority in environmental matters. Court reporting plays a vital role in informing the public about such consequential legal decisions.
September 27th, 2023 at 1:55 am