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  • Joel M. Pratt

Sackett v. EPA: A Sea Change for the Clean Water Act

Court watchers will recall that, at the end of the last Supreme Court term, the Justices took up and decided a case that narrowed the E.P.A.’s authority to regulate greenhouse gasses to combat climate change. And the Court continues its deregulatory approach as it reconsiders a case that is less than twenty years old regarding the Clean Water Act.

At issue is the government’s ability to regulate wetlands under the Clean Water Act. Under previous law (decided by Justice Kennedy, now retired), wetlands connected to “waters of the United States” (defined as navigable waters) are subject to federal regulation. The petitioners in this case seek to narrow the definitions of regulable waters and thus the E.P.A.’s authority. In other words, a ruling for the petitioners will make it easier to fill in, pollute, build on or near, or otherwise fail to protect wetlands if they are not physically close enough to a navigable waterway. And such a ruling appears somewhat likely, given that the Court is reconsidering a rule it issued not too long ago.

Oral argument revealed that the Justices, as they do, are taking a linguistic approach to this. The opinion will likely be long and technical, as will the dissent, and both will focus on statutory intent and the definition of words like “adjacent” to determine just how close a wetland must be to a navigable body of water for the E.P.A. to regulate it. While this is unsurprising to lawyers, this is a profoundly non-scientific way to approach regulation of a precious resource. Wetlands provide essential ecosystem support and water filtration. Moreover, the connection between “surface water” (e.g, lakes, rivers, and reservoirs) and “groundwater” (e.g., aquifers and wells) is more complex than measuring the distance between a wetland and a river.

The abdication of Congress as a meaningful player in the regulation of natural resources has set up a two-branch fight between the courts and the agencies, and the courts are ill-equipped to make such decisions. If we could imagine a less polarized world where the political valence of the regulatory state less dominant, we would certainly not design a system where nine highly intelligent lawyers and zero water engineers are making decisions about the appropriate scope of water regulations. For example, one could certainly imagine a different scenario where nine environmentalists on the Court would create rules allowing over- rather than under-regulation. Nevertheless, this is how we have decided to make decisions about critical natural resources.

In addition to highlighting a growing structural problem with how the government regulates, this case presents another example of the growing factual divide in SCOTUS cases. Just as with the case involving the football coach last term, there are two wildly different versions of the historical facts, here. The petitioners portray themselves as average individual landowners suddenly and without warning put upon by the machinery of the federal government. The government portrays them as sophisticated businesspeople with advanced knowledge of the regulations and their consequences.

It is unusual to have these kinds of factual disputes drive SCOTUS cases. For the most part, on appeal, the factual record is settled, and by the time a case has worked its way to the Court, the facts are secondary to the legal questions. But as the citizens of our democracy are less able to agree on facts, so too are litigants at the Court. Time will tell how those kinds of disputes affect these major legal questions.

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