The Supreme Court just shriveled federal protection for wetlands, leaving many of these valuable ecosystems at risk

Many ecologically important wetlands, like these in Kulm, N.D., lack surface connections to navigable waterways. USFWS Mountain-Prairie/Flickr, CC
Many ecologically important wetlands, like these in Kulm, N.D., lack surface connections to navigable waterways. USFWS Mountain-Prairie/Flickr, CC

By Albert C. Lin, The Conversation

The U.S. Supreme Court has ruled in Sackett v. EPA that federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water. This is an extremely narrow interpretation of the Clean Water Act that could expose many wetlands across the U.S. to filling and development.

Under this keystone environmental law, federal agencies take the lead in regulating water pollution, while state and local governments regulate land use. Wetlands are areas where land is wet for all or part of the year, so they straddle this division of authority.

Swamps, bogs, marshes and other wetlands provide valuable ecological services, such as filtering pollutants and soaking up floodwaters. Landowners must obtain permits to discharge dredged or fill material, such as dirt, sand or rock, in a protected wetland.

This can be time-consuming and expensive, which is why the Supreme Court’s ruling on May 25, 2023, will be of keen interest to developers, farmers and ranchers, along with conservationists and the agencies that administer the Clean Water Act – namely, the Environmental Protection Agency and the U.S. Army Corps of Engineers.

For the last 45 years – and under eight different presidential administrations – the EPA and the Corps have required discharge permits in wetlands “adjacent” to water bodies, even if a dune, levee or other barrier separated the two. The Sackett decision upends that approach, leaving tens of millions of acres of wetlands at risk.


The Sackett case

Idaho residents Chantell and Mike Sackett own a parcel of land located 300 feet from Priest Lake, one of the state’s largest lakes. The parcel once was part of a large wetland complex. Today, even after the Sacketts cleared the lot, it still has some wetland characteristics, such as saturation and ponding in areas where soil was removed. Indeed, it is still hydrologically connected to the lake and neighboring wetlands by water that flows at a shallow depth underground.

In preparation to build a house, the Sacketts had fill material placed on the site without obtaining a Clean Water Act permit. The EPA issued an order in 2007 stating that the land contained wetlands subject to the law and requiring the Sacketts to restore the site. The Sacketts sued, arguing that their property was not a wetland.

In 2012, the Supreme Court held that the Sacketts had the right to challenge EPA’s order and sent the case back to the lower courts. After losing below on the merits, they returned to the Supreme Court with a suit asserting that their property was not federally protected. This claim in turn raised a broader question: What is the scope of federal regulatory authority under the Clean Water Act?

What are ‘waters of the United States’?

The Clean Water Act regulates discharges of pollutants into “waters of the United States.” Lawful discharges may occur if a pollution source obtains a permit under either Section 404 of the act for dredged or fill material, or Section 402 for other pollutants.

The Supreme Court has previously recognized that the “waters of the United States” include not only navigable rivers and lakes, but also wetlands and waterways that are connected to navigable bodies of water. But many wetlands are not wet year-round, or are not connected at the surface to larger water systems. Still, they can have important ecological connections to larger water bodies.

In 2006, when the court last took up this issue, no majority was able to agree on how to define “waters of the United States.” Writing for a plurality of four justices in U.S. v. Rapanos, Justice Antonin Scalia defined the term narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers and lakes. Waters of the U.S., he contended, should not include “ordinarily dry channels through which water occasionally or intermittently flows.”

Acknowledging that wetlands present a tricky line-drawing problem, Scalia proposed that the Clean Water Act should reach “only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right.”

In a concurring opinion, Justice Anthony Kennedy took a very different approach. “Waters of the U.S.,” he wrote, should be interpreted in light of the Clean Water Act’s objective of “restoring and maintaining the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, Kennedy argued, the Clean Water Act should cover wetlands that have a “significant nexus” with navigable waters – “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Neither Scalia’s nor Kennedy’s opinion attracted a majority, so lower courts were left to sort out which approach to follow. Most applied Kennedy’s significant nexus standard, while a few held that the Clean Water Act applies if either Kennedy’s standard or Scalia’s is satisfied.

Regulators have also struggled with this question. The Obama administration incorporated Kennedy’s “significant nexus” approach into a 2015 rule that followed an extensive rulemaking process and a comprehensive peer-reviewed scientific assessment. The Trump administration then replaced the 2015 rule with a rule of its own that largely adopted the Scalia approach.

The Biden administration responded with its own rule defining waters of the United States in terms of the presence of either a significant nexus or continuous surface connection. However, this rule was promptly embroiled in litigation and will require reconsideration in light of Sackett v. EPA.

The Sackett decision and its ramifications

The Sackett decision adopts Scalia’s approach from the 2006 Rapanos case. Writing for a five-justice majority, Justice Samuel Alito declared that “waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.

None of the nine justices adopted Kennedy’s 2006 “significant nexus” standard. However, Justice Brett Kavanaugh and the three liberal justices disagreed with the majority’s “continuous surface connection” test. That test, Kavanaugh wrote in a concurrence, is inconsistent with the text of the Clean Water Act, which extends coverage to “adjacent” wetlands – including those that are near or close to larger water bodies.

“Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland,” Kavanaugh explained. “By narrowing the Act’s coverage of wetlands to only adjoining wetlands, 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.”

The majority’s ruling leaves little room for the EPA or the Army Corps of Engineers to issue new regulations that could protect wetlands more broadly.

The court’s requirement of a continuous surface connection means that federal protection may no longer apply to many areas that critically affect the water quality of U.S. rivers, lakes and oceans – including seasonal streams and wetlands that are near or intermittently connected to larger water bodies. It might also mean that construction of a road, levee or other barrier separating a wetland from other nearby waters could remove an area from federal protection.

Congress could amend the Clean Water Act to expressly provide that “waters of the United States” includes wetlands that the court has now stripped of federal protection. However, past efforts to legislate a definition have fizzled, and today’s closely divided Congress is unlikely to fare any better.

Whether states will fill the breach is questionable. Many states have not adopted regulatory protections for waters that are outside the scope of “waters of the United States.” In many instances, new legislation – and perhaps entirely new regulatory programs – will be needed.

Finally, a concurring opinion by Justice Clarence Thomas hints at potential future targets for the court’s conservative supermajority. Joined by Justice Neil Gorsuch, Thomas suggested that the Clean Water Act, as well as other federal environmental statutes, lies beyond Congress’ authority to regulate activities that affect interstate commerce, and could be vulnerable to constitutional challenges. In my view, Sackett v. EPA might be just one step toward the teardown of federal environmental law.

This is an update of an article originally published on Sept. 26, 2022.

Does Supreme Court decision doom power plant rulemakings?

‘Seismic decision’ in landmark climate ruling, CNN says in reporting on decision written by Chief Justice Roberts

By Bud Ward, Yale Climate Connections (CC BY-NC-ND 2.5)

Devastating.” “Hamstrings …” “… a major blow …” “destructive …” a cataclysm …”

And more.

Those are a few of the early terms used by proponents of greenhouse gas emission regulation to describe the U.S. Supreme Court’s June 30 decision in the most significant environmental case of its session … and perhaps since the Court’s ruling in 2007 finding carbon dioxide a public health pollutant subject to regulation under the Clean Air Act.

In its final decision of this consequential term, the court’s now-familiar six-to-three conservative majority ruled EPA had gone beyond its legal authority by attempting to regulate greenhouse gases through the Obama-era Clean Power Plan. The decision was written by Chief Justice John Roberts, with the three progressive justices dissenting.

But the decision did leave the door slightly ajar to Congress’s outright authorization of such regulations somewhere down the highly uncertain road ahead. Critics of the court’s ruling in West Virginia v. EPA found that option highly unlikely politically and, in any event, nothing to celebrate.

Private sector, market forces, big business left to take climate leadership roles? (to be determined)

“Devastating” is the term the Biden White House used in its initial take on the decision.

Carol Browner, EPA Administrator during the Clinton administration, not surprisingly, used the same term in an interview with CNN, which labeled the ruling a “big blow” to Biden administration climate change ambitions. The decision is expected by many to have implications extending far beyond EPA and climate, affecting rule making by diverse Executive branch agencies (the “administrative state”) on a wide swath of issues.

Upcoming posts coming soon at this site will provide detailed coverage on the court’s ruling; on reactions to the ruling from legal and policy experts; and on what options the federal government, and perhaps some states, might next consider in attempting to reduce greenhouse gas pollutant emissions and atmospheric concentrations.

Forecast ahead: Lots of uncertainty, lots more case-by-case litigation, further doubts over U.S. global role, let alone “leadership,” on climate change.

A law unto themselves

Image by David Mark from Pixabay
Image by David Mark from Pixabay

Why don’t we have any proper system of environmental law?

By David RentonThe Ecologist  (CC BY-NC-ND 4.0).

A series of legal rights has emerged in recent years as if from nothing, and each has become thickened with all sorts of rules and exceptions.

It used to be that the only employment law was, in practice, the law relating to strikes. Half a century later, we have a generalised system of individual employment law.

The main book collecting employment law regulations runs to a tightly-printed 3,000 pages and weighs over two kilogrammes.

Extinction

We did not use to have any information law: now we have the Data Protection Act, the Freedom of Information Act, a specialist enforcement body and an appeals tribunal.

Immigration law has grown from a tiny area, the reserve of a few dozen specialists to provisions so complicated that even the judges complain.  

“Immigration law is a total nightmare,” said immigration judge Nicholas Easterman in 2017. “I don’t suppose the judges know any more about it than the appellants who come before them.”

But while these areas have grown, environmental law has seen no similar expansion.

In Britain there is still no system of environmental law despite half a century of growing public awareness of environmental degradations, of species extinction and the poisoning of the rivers and seas.

Regulating

We have hints of it: in the criminal law for example, when lawyers defend protesters.

When central or local government makes a decision which has an environmental impact that decision can be judicially reviewed in the High Court.

The First-Tier Tribunal contains an Environmental Chamber which hears appeals by business after they have been fined under regulations dealing with eco-design, single user carrier bags, waste, etc.

But these hints fall short of constituting a proper system of environmental justice, in which the people who pollute and poison our world can, for example, have their property removed from them.

Often the problem is said to be one of “standing”. In other words, that unless and until trees and mountains can sue in their own name, then no-one will be able to restrict the decisions made by government in planning and regulating industry.

Interference

And it is true that this absence hampers lawyers: destroy a creature’s habitat and the harm to them will aways be greater than the second-hand suffering done to the people who care for nature.

Yet, standing is only a part of the problem. Over the past 25 years, the group of charities who have been empowered to bring judicial review cases has widened. But it remains true that most such claims are brought, fought hard, and lost.

Until we can sue and expropriate the worst of the polluters, it is hard to see how business will feel any pressure to change.

The answer is not a cadre of judges willing to be bolder in their application of judicial review. For that is a remedy against government.

And most damage to the environment is done by businesses rather than the state, and if a company pollutes the air or the water or contributes to global warming, the citizen has almost no meaningful redress against them.

More than a century ago, Victorian judges developed the idea of a private nuisance, a harm which happens when one person causes an unreasonable interference to the use and enjoyment of a person’s property.

Neoliberalism

Yet a claim in nuisance cannot only be brough by a landowner. Imagine, the owner of a commercial forest which has been damaged by acid rain. Who would the owner sue?

The time between an act of environmental destruction and its consequences may be protracted. The distance between the release of a pollutant and the harm it causes may be hundreds of miles. What, if the polluter is outside the United Kingdom? Nuisance assumes that pollution is incapable of crossing borders.

After fifty years of growing public consciousness we should have – but no court has actually recognised – a system of economic wrongs – “torts” – done against nature, and a series of remedies including both compensation and confiscation.

Only then would there be the intellectual infrastructure so that claims brought in the name of trees or mountains would have effect. But that would only be the first step. And its creation now would be too late.

The irony is that for the last forty years, we have lived through a political moment  – “neoliberalism” – which has been open to the creation of new laws.

Right

Under neoliberalism, the whole of existence is understood as an opportunity for the creation of markets – in water, in housing, in utilities – which require rules and people to enforce them.

No mechanism has been accepted for changing how business behave, except through market creation, and business regulation and reward. The vast majority of people are left out of these dynamics.

Think of the European Union Emissions Trading System (EEUTS), the main policy mechanism of the EU for resisting climate change which was set up in 2005 to use market solutions to prevent global warming.

Although this is “European law”, UK politicians enthusiastically supported these proposals. On Britain’s departure from the European Union, a UK Emissions Trading Scheme was drawn up, closely modelled on it.

The idea was that 10,000 or so factories, power stations, and similar companies responsible for around half the EU’s CO2 emissions would each be permitted a certain maximum volume of greenhouses gases which they could release. If they wanted to produce more than their cap, they would have to buy the right to produce extra carbon.

Punishment

States give companies a carbon budget which they are entitled to trade. The scheme has therefore worked via a series of subsidies to business – like so much supposed regulation in recent years.

Companies have been provided with an asset – a hypothetical entitlement to produce greenhouse gases – which they can sell on the market.

So, between 2008 and 2015, cement producers were gifted between over 5 billion euros of windfall profits; and this to the European representatives of a commercial sector which produces one in twelve of all carbon emissions worldwide.

The point was not to prevent emissions but to enrich those who held property. An OECD report found in 2018, that the firms within the scheme had on average 16 percent more fixed revenues than they would have had they never been regulated.

The scheme has been widely criticised: initially for oversupplying emissions allowance, causing the price of carbon so low that there was no punishment for polluters.

Cement

It has incentivised false accounting: by rewarding companies which make promises to plant trees – even if there is no prospect of them being planted, or to invest in technology to suck carbon out of the atmosphere, even where that technology does not exist; or by buying up the nominal credits arising from the legacy of old industrial technologies and washing them through the system repeatedly, in order to allow business to keep on expanding.

The verdict on the EEUTS appears to be that it caused a one-off reduction of around ten percent in European carbon emissions but that, despite repeated attempts to tighten it, the scheme has diminishing effect every year.

A fall of ten percent in carbon emissions is not to be dismissed; but the EU’s carbon reduction goal is to reach 40 percent within eight years.

The problem with the EEUTS, and with its British counterpart, is that there is no mechanism for the citizen to complain, say, if a cement company misses its carbon targets.

Polluters

It is left to the same governments to enforce which ignore commercial fraud and money laundering, which prosecute people who are overpaid welfare benefits but refuse to prosecute businesses when they have taken millions in grants to which they were not entitled.

Under the EEUTS and under all the Regulations made over the past 40 years, mere voters are not parties to the litigation; we cannot demand that a business be fined or have its property taken away because of its reckless stewardship of its environmental resources.

Perhaps there is a debate to be a had about whether we as a society truly want to make citizens enforcers. There are things to be learned from the way in which employment law has grown at just the same time that trade union have been weakened, a balance is needed between the law and social movements.

But until we can sue and expropriate the worst of the polluters, it is hard to see how business will feel any pressure to change.