The May 25 U.S. Supreme Court decision Sackett v EPA overturns a decision from the U.S. Court of Appeals’ 9th Circuit, which sided with the EPA in 2021, upended existing practices by limiting the Clean Water Act, with a majority holding that only wetlands that have a continuous surface connection to a river, lake, or other major waterway are covered by the law. Here, environmental law expert Professor Deborah Sivas discusses the decision and possible impacts.
What is the big takeaway from this decision?
As many anticipated, the Sackett decision dramatically shrinks the authority of the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers to regulate wetlands. Under the Clean Water Act, these agencies have dual regulatory authority to protect “waters of the United States” and “adjacent wetlands.” The Sackett case, like several prior cases before the Court, challenged the definition and scope of Clean Water Act jurisdiction over wetlands adjacent to waters of the United States.
The Court last visited this issue in the 2006 case Rapanos v. U.S. That case resulted in a plurality decision, with Justice Scalia and three other justices endorsing a quite narrow reading of what constitutes covered wetlands and Justice Kennedy, who provided the Court’s fifth vote, adopting a somewhat broader statutory interpretation in his concurrence. That fractured outcome led to uncertainty about what test to follow. In promulgating new post-Rapanos regulations, the EPA essentially adopted Justice Kennedy’s interpretation. Thursday’s Sackett decision rebuffs Justice Kennedy’s approach and, in its place, adopts a brand-new test that is even more restrictive than what Justice Scalia proposed in 2006.
How do you expect this decision to play out, particularly regarding the Clean Water Act? What impacts might we expect?
In the prior Rapanos case, Justice Kennedy articulated what has come to be known as the “significant nexus” test—that is, federal jurisdiction over wetlands exists where there is a significant nexus between the adjacent wetlands and the navigable water such that the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of navigable waters. The majority decision in Sackett, authored by Justice Alito and joined by Justices Roberts, Thomas, Gorsuch, and Barrett, roundly rejected the “significant nexus” test as inconsistent with the text and structure of the Clean Water Act and instead announced a new rule: The Clean Water Act extends only to those “adjoining” wetlands that have a “continuous surface connection” to navigable waters and are, as a practical matter, “indistinguishable” from such navigable waters.
In effect, the Sackett holding strips federal protection from many, if not most, wetlands across the nation. It means that, going forward, the only wetlands protected by federal regulation are those that physically adjoin and permanently connect to navigable waterways. I don’t know the numbers, but I suspect that wetlands satisfying those criteria are a pretty small subset of the universe of valuable wetlands that we still have. Intermittent wetlands, which are especially prominent throughout the West, and those wetlands that do not directly adjoin navigable waters (e.g., are separated by some kind of barrier but are still hydrologically connected to navigable waters) are no longer covered by the Clean Water Act. Yet science tells us that such nearby wetlands have enormous pollutant filtering, flood control, species protection, and other ecological benefits. Sackett thus effects a dramatic decline in federal environmental protection for the nation’s wetlands and hydrologically connected adjacent waters.
What needs to happen to prevent those negative impacts?
Theoretically, the states could fill the gap. For example, California’s own water law, the Porter-Cologne Water Quality Control Act, arguably provides sufficient authority for regulating even intermittent and isolated wetlands, although the state’s first attempt to draft comprehensive wetlands regulations a few years ago stumbled procedurally. And California has separate, strong protections for coastal wetlands. But many states do not have such statutory authority. Indeed, nearly half the states expressly prohibit state regulators from being more stringent than the federal regulations. That likely means a significant loss of wetlands protection across the U.S, where more than 50 percent of historic wetlands have already been filled and lost. In California, the loss of historic wetlands is more like 90 percent.
Could there be a legislative solution?
Beyond turning to state wetlands protection, where available, we will have to look at creative uses of other federal and state laws. For example, if endangered or threatened species inhabit the wetlands—as is the case, for instance, in most of California’s remaining vernal pools—the Endangered Species Act may provide a legal hook, although likely a weaker one. Another option is to try to use the Clean Water Act’s other permitting program for the discharge of pollutants into U.S. waters; To date, that program has been limited to industrial discharges, but arguably could expand to cover the filling of wetlands, at least in some instances. And I’m certain that some conservation-oriented organizations are thinking about how to use state common law theories like nuisance. But the viability of any of these or other alternative approaches is really uncertain, even in more progressive states.
The ultimate solution would be a statutory amendment clarifying the federal Clean Water Act, but the possibility of such legislative action is, of course, vanishingly small.
Can you say more about this decision as it relates to administrative law?
This case is yet another data point in understanding where the current Supreme Court is headed more generally on basic administrative law. In several recent decisions, the new majority has illustrated a level of disdain for the fundamental notion that courts should defer to the scientific and technical expertise of administrative agencies, as Congress intended. Sackett continues the march to upend this basic New Deal framework where Congress delegates complex implementation issues to expert agencies. The majority opinion in Sackett does briefly recount the history of EPA’s attempt to develop scientifically sound and legally defensible wetlands regulations in response to various prior court decisions, but it lacks any hint of deference to agency expertise on difficult water quality issues.
In the Clean Water Act, Congress understood that degradation or destruction of wetlands may adversely affect hydrologically connected adjacent waters and gave EPA and the Army Corps authority to address those concerns. Justice Kennedy’s “significant nexus” test attempted to honor this congressional intent—and the expertise of the implementing agencies—by allowing regulation of wetlands that affect the chemical, physical, or biological integrity of nearby waters. The existence of such effects is really a technical question within the expertise of these agencies. But the Sackett decision abandons that concept altogether and ignores the sophisticated science of hydrogeology. Instead, the Court creates its own bright line test which limits federal protection to those relatively rare wetlands that have a permanent connection to rivers and lakes such that they are indistinguishable from those waters. The majority opinion utterly ignores the role of agency expertise in applying the science of hydrogeology and, as Justice Kagan says in her concurrence [to the dissent], effectively usurps the policymaking role of Congress.
A leading environmental litigator, Deborah A. Sivas, JD ’87, is the founding director of the highly regarded Environmental Law Clinic, in which students provide legal counsel to dozens of national, regional and grassroots nonprofit organizations on a variety of environmental issues. Professor Sivas’s litigation successes include challenging the Bush administration’s gas mileage standards for SUVs and light trucks and holding the U.S. Environmental Protection Agency accountable for regulating the discharge of invasive species in ship ballast water. Her current research is focused on the interaction of law and science in the arena of climate change and coastal/marine policy and the ability of the public to hold policymakers accountable.