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Tuesday, May 30, 2023

Sackett v. EPA – AKA See Rapanos (plurality opinion)

The following is by my FIU colleague Alex Erwin.

By the time you get to “We start as always with the text” on page 15, it should be abundantly clear what Justice Alito believes the “text” says.  Those 15 pages ostensibly cover the structure and history of the Clean Water Act (CWA), but that background information is neatly interwoven with a narrative of the “crushing consequences even for inadvertent violations” that property owners are subjected to under the Act.  According to Justice Alito, the ultimate effect is that many landowners  “simply choose to build nothing” rather than attempt to comply with the Act.

The Sacketts were not landowners that simply chose to build nothing.  They instead chose to fill in the wetlands on their property with gravel, in spite of repeated warnings, kicking off a 16-year war with EPA.  After two trips to the Supreme Court, the Sacketts have finally won a determination that their property is not a jurisdictional water under the Clean Water Act, and as such they did not need a dredge and fill permit under Section 404.

The key issue in this case was whether or not the wetlands on the Sacketts’ land fell under the category of “waters of the United States” or WOTUS.  The CWA involves a nested set of definitions.  The Act prohibits the “discharge of any pollutant by any person” without a permit, and it defines the term “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 

Congress then unhelpfully defined “navigable waters” to mean “the waters of the United States.”  Everyone agrees that WOTUS refers to water and that it has something to do with navigability.  Frankly, what exactly Congress originally intended the phrase “waters of the United States” to mean is as clear as mud.  The EPA and the Army Corp of Engineers have jointly promulgated new regulations attempting to define WOTUS under each of the last three presidents, and each time federal courts have blocked them.  This is now the fourth time the Supreme Court has chosen to weigh in on the WOTUS issue, and I’m skeptical that this will be the end.  One thing that has remained consistent, however, is that, since 1975, wetlands adjacent to navigable waters have been regulated as a WOTUS.

Issues arise when the agencies regulate “waters” other than those that are traditionally navigable – such as wetlands.  In Rapanos v. U.S., a divided court agreed that the property in question was not subject to the CWA, but the court produced no majority opinion.  Justice Scalia wrote the plurality opinion for himself and three others; in his view wetlands needed to have a “continuous surface connection” with another “water of the United States.”  Justice Kennedy concurred in the judgment, but wrote separately.  Justice Kennedy believed that wetlands could be jurisdictional if they had a “significant nexus” with a traditionally navigable water.  He believed wetlands possessed “the requisite nexus … if the wetlands … significantly affect the chemical, physical, and biological integrity of other covered waters.”  Though the significant nexus test has been criticized as being overly broad and technical, in the years that followed, this test became the de facto law of the land; every court of appeals faced with applying Rapanos held that waters that at least satisfied Justice Kennedy’s significant nexus test were jurisdictional.

In Sackett, Justice Alito wrangled up a majority (C.J. Roberts, J. Thomas, J. Gorsuch, and J. Barrett) to finish what Justice Scalia started in Rapanos.  Frankly, Justice Alito could have saved himself quite a bit of time by just writing “See Rapanos (plurality opinion)” in place of his own opinion.  The majority places its focus squarely on the definition of “waters” which it defines (as Justice Scalia did) to include “only those relatively permanent, standing, or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”  Though this narrow definition of “waters” makes no mention of wetlands, Justice Alito begrudgingly acknowledges that some wetlands are covered.  After some rather tortured algebra-cum-statutory interpretation (“A minus B, which includes C”), the majority revives the Rapanos plurality holding that the CWA “extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable from those waters.’”  While ultimately landing at the same conclusion as Justice Scalia back in 2006, the majority here, according to Justices Kavanaugh and Kagan, relies on “unorthodox” “non-textualism” animated by concerns about federalism, private property interests, and vagueness.

Unsurprisingly, I think the Kavanaugh and Kagan concurrences make the better argument.  Justice Kavanaugh, joined by the three liberals, narrows in on the actual question at issue, “whether the wetlands on the Sackett’s residential property are adjacent to covered waters and therefore covered under the Act.”  His version of textualism correctly posits that adjacent (aka nearby or neighboring) and adjoining (aka physically touching) are separate words with separate meanings.  Congress clearly endorsed the protection of adjacent wetlands when it modified the CWA in 1977 to include specific reference to “wetlands adjacent” to navigable waters.  He also seemed convinced that an interpretation that has remained consistent for “45 years and across all eight Presidential administrations” is likely a correct one.  He seems confused as to why the majority therefore insists that they are performing pure textualism when they require wetlands to be adjoining (aka a continuous surface connection) rather than adjacent.

Justice Kagan is less confused about the majority’s intentions.  She accuses the majority of “rescu[ing] property owners from Congress’s too-ambitious program of pollution control.”  She scathingly ends her “concurrence” repeating what she wrote last term in West Virginia v. EPA – “The Court substitutes its own ideas about policymaking for Congress’s.  The Court will not allow the Clean [Water] Act to work as Congress instructed.  The Court, rather than Congress, will decide how much regulation is too much.”

So, has the majority cleared up this legal quagmire?  Likely not.  Justice Kavanaugh asks a number of difficult questions highlighting the gaps the majority has now created.  Focusing on the “indistinguishable” language, he asks: “how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered?”  According to the amicus brief submitted by 12 scientific societies, wetlands science has already evolved to point that the boundaries of wetlands can “almost always be delineated.”  If the only wetlands that can be protected are those that are “indistinguishably part of a body of water that itself constitutes “waters” under the CWA,” then Sackett has effectively ended federal regulation of wetlands.  Prof. Royal Gardner (one of the authors of the brief) made the point on Twitter that much of the Everglades are no longer considered a WOTUS based on this language.

Even if the “indistinguishable” language gets read out or softened by subsequent courts, the “continuous surface connection” test alone causes problems.  If berms, levees, roads, and other structures break this continuous surface connection, then there is no jurisdiction for the portions of the wetlands that are no longer attached to the navigable body of water.  This means that previous permits that were given out to build these structures have now caused the loss of far more wetland acreage than originally believed.  It does not matter that these wetlands on both sides of the structure are still ecologically and hydrologically connected.

It is also unclear what this case means for streams.  This case could have narrowly dealt with adjacent wetlands, but Justice Alito liberally cribbed language from the Rapanos plurality that addressed bodies of water like arroyos, washes, ephemeral streams, and intermittent streams.  If the continuous surface connection test is also required for these bodies of water, then nearly 100% of the previously jurisdictional waters in states like Arizona and New Mexico will be no longer be covered – a disastrous result in my opinion.

The full extent of the damage will only be known after we see how the lower courts and agencies grapple with the holding, but the real-world consequences of this ruling are potentially massive.  To put it in perspective, the approach adopted by the majority is significantly narrower than the definition proposed in 2020 by the Trump administration (and that rule would have conservatively removed coverage for 51% of covered wetlands). 

This will also be a massive loss for wildlife conservation.  Half of all federally listed species in the United States are wetland dependent.  Permitting under the CWA has traditionally been a major hook for other federal environmental regulations – for example if you need a CWA permit to fill your wetland, the permitting agency must comply with NEPA and consult with Fish and Wildlife Service under the Endangered Species Act.  Without this permitting authority, proactive conservation measures are less likely to be taken.  Enforcement of the ESA on private property, especially related to harm caused by habitat destruction, is notoriously difficult.

Stray Thoughts:

  • It is a shame (and frankly a surprise) that the liberal justices and Justice Kavanaugh all chose to concur rather than dissent. The concurrences certainly read like dissents – they’re rather barbed with very little concurring going on.  It is still unclear to me why the justices even believe the Sacketts’ land was not jurisdictional under their understanding of “adjacent wetlands”.  Certain politicians and media outlets have already been touting this as a 9-0 decision – it creates confusing messaging.
  • After both Sackett and West Virginia, I heard colleagues chastise the EPA for not doing more to kill these cases before it gave the courts a chance to create bad precedent. I fear that one of the lasting results of these cases will be an agency that is more gun-shy when bringing enforcement actions (especially on borderline cases) or trying to innovate with policy.  If the specter of the Supreme Court is going to hang over everything EPA tries do to, they might just decide that more environmental harm will result from enforcing/implementing the law to its full extent.
  • The only silver lining I can find is that the majority’s opinion is the second worst-case outcome. If Justice Thomas had gotten his way reigning in the Commerce Clause, he would have drug environmental regulation back to the Lochner  The agency might have lost jurisdiction over all purely intrastate waters, and I would be worried that the court would next go after other environmental regulations that are precariously propped up by the Commerce Clause (especially the Endangered Species Act).
  • This case is also a fantastic illustration of how far the Supreme Court has run from Chevron The first WOTUS case, US v. Riverside Bayview Homes, Inc., was decided a year after Chevron.  The Court recognized that the agency was entitled to deference because its interpretation of WOTUS was reasonable and not in conflict with the Congress’s intent.  Even in Rapanos, the 4 liberal dissenters would have deferred to the agency’s interpretation under Chevron.  In Sackett, none of the opinions mention Chevron or suggest deferring to the agency.  Justice Alito claims that EPA’s interpretation (the same interpretation they’ve had for 45 years) is “inconsistent with the text and structure of the CWA.”  Each Justice claimed to “stick to the text,” while obviously coming to completely different conclusions about what that text said.  It does not take an administrative law scholar to see how Loper Bright Enterprises v. Raimondo is likely to go next term.
  • Justice Alito is incredibly dismissive of science (“the CWA does not define the EPA’s jurisdiction based on ecological importance”). He pushes a test that ignores ecological and hydrological reality.  The significant nexus test might have been difficult to implement, but at least it was based on science and designed to meet the purpose of the CWA.

Here’s the tl;dr: Sackett is likely disastrous for wetlands and severely limits the scope of the CWA in a way Congress certainly never intended.

Posted by Howard Wasserman on May 30, 2023 at 10:01 AM in Law and Politics | Permalink


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