A new Supreme Court opinion is terrible news if you care about clean water

A new Supreme Court opinion is terrible news if you care about clean water

Floodwater from the Mississippi River surrounds a home built outside of the town’s levee on May 2, 2023 in Oquawka, Illinois. | Scott Olson/Getty Images

The Court took a huge bite out of the Clean Water Act.

The Supreme Court handed down a 5-4 decision on Thursday which places a drastic new limit on the Clean Water Act, the 1972 law that forms the backbone of the United States’ efforts to ensure that America’s water supply is clean and safe.

As Justice Brett Kavanaugh writes in a dissenting opinion, Justice Samuel Alito’s majority opinion in Sackett v. EPA is likely to hobble the law’s ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay.

The case involves an admittedly quite difficult question of how to read a vague provision of the law. The Clean Water Act prohibits “discharge of pollutants” into “navigable waters.” But it also defines the term “navigable waters” counterintuitively, to include all “waters of the United States, including the territorial seas.”

Both the courts and the federal agencies that enforce this law have struggled over the last half-century to determine which “waters” can be regulated under this uncertain statutory language — a problem exacerbated by the fact that pollutants discharged far from a major waterway can nonetheless migrate into that waterway. A toxic chemical dumped miles from the Mississippi River might find its way to that river through the network of streams, creeks, wetlands, and similar geographic features that feed into it.

The last time the Supreme Court took up this question — what, exactly, are the “waters of the United States?” — was in Rapanos v. United States (2006), and Rapanos split the Court three ways, with none of the three approaches winning a majority of the justices’ votes.

Thursday’s opinion in Sackett adopts the narrowest of those three approaches, the one Justice Antonin Scalia suggested in one of those 2006 opinions. Under Alito’s Sackett opinion, the act only applies to “traditional interstate navigable waters,” to a “relatively permanent body of water” connected to such a waterway, and to wetlands so interconnected to such a body of water that they are “as a practical matter indistinguishable” from it.

As an amicus brief filed by professional associations representing water regulators and managers warned, this new definition will “exclude 51% (if not more) of the Nation’s wetlands” from the Act’s protections. Wetlands often act as filtration systems that slow the seepage of pollutants into major waterways, and as sponges that help control floods.

In short, this opinion will significantly curtail the federal government’s ability to protect American waters.

Alito’s opinion is at odds with the text of the Clean Water Act

The specific dispute in Sackett involved Idaho landowners who wanted to fill in what a federal appeals court described as a “soggy residential lot” with dirt and rocks so that they could build a house on it. The lot is near a tributary that feeds into a creek, which itself feeds into Priest Lake, a sufficiently large body of water that no one really questions if it is subject to the Clean Water Act.

Although all nine justices agreed that the Clean Water Act does not apply to this particular lot, they split 5-4 on how to read the act, with Kavanaugh joining the three liberal justices in dissent. (Technically, both Kavanaugh’s opinion and Justice Elena Kagan’s separate opinion, which also disagrees with Alito, are opinions “concurring in the judgment,” because all nine justices agreed that the property owners should prevail. But both of those opinions dissent from Alito’s reading of the law.)

The Clean Water Act is not the most precisely drafted law, and its text offers few hints as to what the “waters of the United States” might be. But it does include one pretty clear indication of how the law treats wetlands. One provision of the Clean Water Act applies the law to “wetlands adjacent” to waterways covered by the act.

As Justice Kagan writes in her opinion, “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”

But Alito’s opinion does not apply the act to all wetlands that are “adjacent” to nearby waterways. Under Alito’s approach, only wetlands that have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands” are subject to the law’s restrictions on pollution.

This somewhat fast and loose approach to statutory text is a common feature in Alito’s opinions. In Brnovich v. DNC (2021), for example, Alito’s majority opinion imposed a number of extratextual limits on the Voting Rights Act — such as a strong presumption that voting restrictions that were commonplace in 1982 are lawful — that appear nowhere in the Voting Rights Act’s text.

But, regardless of whether the Sackett opinion can be squared with the actual language of the Clean Water Act, it is a binding opinion by the Supreme Court of the United States, and its narrow reading of that act could drastically limit the nation’s ability to fight water pollution.

So what does this decision mean for America’s water system?

Near the end of his opinion dissenting from Alito’s approach, Kavanaugh lays out several ways that “the Court’s rewriting of ‘adjacent’ to mean ‘adjoining’ will matter a great deal in the real world.” He warns that this decision “may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.”

As Kavanaugh writes, “the Mississippi River features an extensive levee system to prevent flooding.” But, because these levees create a physical barrier, “the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”

Similarly, Kavanaugh warns that “federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries.”

It’s also unclear how Alito’s requirement that wetlands must have a “continuous surface connection” to a regulated waterway is supposed to work in practice. Alito’s opinion does concede that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells” — implying that a specific wetland does not suddenly become unregulated because a drought temporarily disconnects it from a nearby waterway. But Kavanaugh writes that Alito’s new test still raises a host of questions about which wetlands are still subject to the law:

[H]ow difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by the Clean Water Act? How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered? How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert?

The fundamental challenge facing any water regulator is that water systems are interconnected. As Kavanaugh writes, “because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.”

This explains why Congress not only extended the Clean Water Act to significant waterways, it also extended it to wetlands that are “adjacent” to those waterways. It makes no sense to prohibit pollution dumped directly into the mighty Mississippi, but to permit pollution to be dumped on nearby wetlands that feed directly into the river.

Nevertheless, five justices ruled that Congress’s decision to apply the law to adjacent waterways does not matter.

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