Supreme Court Could Shift More Control Over Wetlands to States

The U.S. Supreme Court will kick off its annual term Monday with a case that could slash federal power to regulate development on and around wetlands and leave it to states to tighten or loosen protections for those environmentally sensitive areas.

The justices will hear arguments in Sackett v. Environmental Protection Agency, the latest case in a decades-long saga over the reach of the federal Clean Water Act. The law prohibits people from polluting bodies of water without a permit. It also requires people to get approvals before they add fill material to swampy lands.

But the law only governs “waters of the United States.” In past cases, the Supreme Court has narrowed the bodies of water that fit under that definition by, for example, excluding abandoned quarries now filled with water. 

It has not been able to come up with a hard-and-fast rule, though, for wetlands. The last time it tried, in 2006, the court produced a 4-1-4 decision that lower courts and regulators have been fighting about ever since. A ruling from the 9th U.S. Circuit Court of Appeals, based on the 2006 decision, teed up the dispute now before the high court. 

“One problem for state and local policymakers for the past 20 years, has been uncertainty about the extent of the federal government’s role conserving wetlands,” said Jonathan Adler, a law professor and director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University in Cleveland.

“For states to play a complementary role, they need to know where that line is. Policymakers aren’t going to waste time and resources doing things that the federal government is already doing,” Adler said. “So having greater certainty about what's the scope of federal regulatory jurisdiction is certainly important.”

The case the justices will hear Monday comes from the Idaho panhandle, where Michael and Chantell Sackett have been trying since 2007 to build a home on a lot near Priest Lake. (The couple’s plight already reached the Supreme Court once before, when the justices settled a procedural matter in their favor.)

The Environmental Protection Agency forced the Sacketts to stop work on the home, because it said that filling in the lot would affect water flowing into the lake. The couple contests that assertion. They say the wetlands do not empty into Priest Lake. And they object to the EPA’s rationale for invoking the Clean Water Act, because their land is separated by a road from wetlands that are connected to the lake. The wetlands across the street, they say, first connect to a manmade ditch, which empties into an unnamed creek, which, in turn, flows into Priest Lake.

To figure out whether the federal government had jurisdiction, lower courts looked to the 2006 Supreme Court case, Rapanos v. United States.

Specifically, they relied on a concurrence written by then-Justice Anthony Kennedy, who was the deciding vote in the case. (The 4-1-4 ruling was a result of Kennedy agreeing with the outcome in the case, but arriving at it by different reasoning than the other four justices in the majority.) Kennedy argued that the waters in question would have to have a “significant nexus” with navigable waterways to fall under the Clean Water Act.

Four conservative justices, led by the late Antonin Scalia, wanted an even tighter connection, arguing that the wetlands should be linked by direct surface flows to  navigable waterways.

Courts and presidential administrations have subsequently argued over which standard should apply: Kennedy’s or Scalia’s. That’s the question before the court in the current case.

“Obviously, this case is going to be really important in terms of what the Biden administration can basically get away with in terms of a regulation,” said Mark Squillace, a University of Colorado natural resources law professor.

Squillace said the court’s efforts over the last quarter century to limit the scope of the Clean Water Act run counter to the intent of Congress.

“It's just outrageous that we are where we are, and this is one situation where the Supreme Court, more than any other institution, has really messed up the law – and messed it up in ways that are just entirely confusing,” he said. “At the end of the day, this needs to be fixed by Congress.”

The court has shifted to the right since it decided Rapanos. Conservatives now control a 6-3 majority, and they have used that power in recent years to  curb federal agencies’ regulatory authority. That would suggest that the court would be willing to consider Scalia’s approach, or even a stricter standard.

“Going into the argument, that certainly is what we have to think the court is leaning towards,” Adler said.

The Sacketts are represented by the Pacific Legal Foundation, a libertarian-leaning public interest law firm that has characterized the EPA’s actions toward the couple as “brazen, unconstitutional overreach” and has said that the case provides an opportunity for “reining in the unconstitutional administrative state.” Groups for industries like ranching, mining, railroads and oil and gas are siding with the Sacketts. 

Environmental advocates, meanwhile, say that a rollback of wetland regulations could jeopardize water quality and would be a step too far by the court. 

Weakening Clean Water Act protections “would be catastrophic,” said Sam Sankar, senior vice president for programs for Earthjustice. 

“It is not the proper role of the courts to undermine environmental protections adopted by democratically elected branches of government, particularly when people have relied on those protections for decades,” Sankar added.

States and Localities Weigh In

With such a sweeping decision potentially in the offing, state and local government advocates have tried to ensure the justices know their concerns about the case. 

A coalition of municipal groups specifically asked the court to exclude infrastructure used for flood control, water supply and stormwater management from any tightened wetland regulations. They said the standards proposed by both Scalia and Kennedy included such carve outs.

Applying the Clean Water Act regulations to these kinds of infrastructure could hinder how it is operated and maintained, or require water within the facilities “to meet standards that may not be achievable,” the municipal groups argued. 

The National Association of Counties, National League of Cities, U.S. Conference of Mayors and International City/County Management Association were among the groups that signed on to the brief.

On the other hand, several organizations that oversee development in floodplains warned the court that the Sacketts’ approach to the case would “exclude vast swaths of the nation’s waters from coverage under the [Clean Water Act], including vulnerable waters that substantially benefit human welfare. The result would be a reduction in drinking water quality, more frequent severe floods, and barriers to development.”

The change would also stymie state efforts to control water quality, they added.

“Uneven state regulation will also lead to costs and uncertainty: States will have to undertake the efforts previously taken by the federal government; downstream water managers and developers will struggle to predict upstream water quality; and multistate entities will face varied regulations,” said the groups, including the Association of State Floodplain Managers and the American Planning Association.

Other objections fell more along partisan lines.

For example, 26 mostly conservative states signed onto a friend-of-the-court brief that encouraged the justices to narrow federal jurisdiction over wetlands. 

State environmental protection agencies are charged with carrying out much of the enforcement for the Clean Water Act, they pointed out. They went on to argue that a standard in line with the 9th Circuit ruling, applying to wetlands “with only tenuous connections to navigable, interstate waters,” would “saddle states with implementing a vast scheme of federal water regulation.”

“States’ own efforts at conservation, tailored to local needs, would fall by the wayside. Federalism would become an afterthought,” the states said in their brief, which was spearheaded by West Virginia Attorney General Patrick Morrisey.

Alaska wrote separately to argue that the “overreach” of courts and federal agencies relying on Kennedy’s test disproportionately harmed the state, because of its unique topography and large swaths of undeveloped land that could be categorized as wetlands.

That test could make it virtually impossible for a village like Chefornak, in western Alaska, to build a wastewater lagoon, so they wouldn’t have to rely on “honey buckets” dumped into a local pond to get rid of sewage. Complying with the heightened environmental standards under the law would make the project cost $8 million, which is prohibitively expensive, Alaska’s lawyers explained.

Meanwhile, Colorado, a state with a Democratic attorney general and long-time home to Justice Neil Gorsuch, encouraged the court to maintain the Kennedy rule. It said the significant nexus test would preserve regulation of the intermittent streams that dominate Colorado’s landscape.

“This test is particularly important in preserving a federal baseline in arid states like Colorado, where an obvious continuous surface connection to navigable waters may not be present for a large portion of our waters,” its attorneys wrote.

Overturning that standard would “upend settled expectations and harm states” that have relied on the current regulations, they added.

Another group of Democratic-led states also urged the court to uphold Kennedy’s test.

“Before the [Clean Water Act], a patchwork of inconsistent state laws proliferated in the absence of uniform federal regulation,” they wrote. “Congress enacted the [law] in large part to remedy this interstate problem, by setting a federal ‘floor’ of national minimum pollutant controls applicable in every state. Removing wetlands connected to navigable waters from the [law’s] coverage would subvert [its] protections for downstream states.”