Energy & Environment

Supreme Court weighs redefining clean water regulations

The Supreme Court on Monday weighed whether to limit the scope of the country’s clean water regulations in a case that could have a far-reaching impact on the nation’s water quality. 

The fairly technical argument, which dealt with the Clean Water Act’s regulatory reach over wetlands, did not clearly telegraph how the court would rule. Its most conservative and liberal members appeared to stake out opposite ends of the debate, however, while several other justices seemed more difficult to read.

The case stems from a 2007 property dispute, in which Idaho landowners Michael and Chantell Sackett were told they needed a federal permit to build a home on land they owned because it supposedly contained regulated wetlands.

Now, 15 years later, the couple is arguing that the way that the federal government views regulated wetlands is too broad. 

The case will determine when wetlands are — and are not – subject to federal regulations under the Clean Water Act. 

Environmentalists argue that it is important to protect these ecosystems when they have significant connections to other regulated bodies of water in order to prevent those bodies of water from becoming polluted. A Trump administration rule which narrowed wetland regulations reportedly would have left 51 percent of the country’s wetlands unprotected. 

While the court did not project a clear outcome during its questioning, the 6-3 conservative majority court has a history of looking skeptically at the federal government’s claim of regulatory authority over the environment when its powers are not clearly defined by law. 

In the first argument of the court’s new term, the three most conservative justices seemed inclined to pare back the government’s environmental authority, while the court’s three more liberal members appeared to favor an expansive view. Some of the other justices sent mixed signals about how they might rule in the case. 

Conservative Justice Brett Kavanaugh asked particularly tough questions of the Sacketts’s lawyer, Damien Schiff. 

In arguments that at times focused on when a wetland can be considered “adjacent” to regulated waters, he took issue with the lawyer’s insistence that this referred to waters that are “touching” rather than “neighboring.”

Kavanaugh described “neighboring” as the “ordinary dictionary definition of adjacent.”

When Schiff responded that the statute appears to be referring to waters that are touching, Kavanaugh noted that a series of previous administrations, Republican and Democrat alike, took a broader view of adjacency. 

“Why did seven straight administrations not agree with you?” he asked the lawyer. 

Chief Justice John Roberts and Justice Amy Coney Barrett also appeared to ask tough questions of both sides. 

In her debut on the bench, Justice Ketanji Brown Jackson, who is expected to round out the court’s liberal wing, used several questions to tether the more abstract legal debate to the underlying purpose of the Clean Water Act, which turns 50 this month.

She aimed a sharp line of inquiry at a lawyer for the land owners, who urged the court to narrow the government’s authority over wetlands to extend only to those with a continuous surface connection to U.S. waters.

“You say the question is which wetlands are covered, which I agree with,” she said. “But I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical and biological integrity of the nation’s waters?”

Under the current system, many polluters are also not necessarily blocked from carrying out activities in regulated waters. Instead, they may need to either apply for a permit that contains stipulations that they follow environmental safeguards, or follow existing stipulations in a “general permit” that gives a blanket waiver to certain activities.  

But environmentalists say that while pollution still occurs when permits are in place, the stipulations they offer are important for averting the worst damages.  

In seeking to preserve the requirement for permits to carry out activities in certain wetlands, Justice Department lawyer Brian Fletcher argued that whether protections apply can be determined by a “significant nexus” test. 

Fletcher said that this includes factors such as distance, flow, an area’s hydrology and the presence of other wetlands. 

In a prior court decision, three of the court’s conservative justices, Roberts, Samuel Alito and Clarence Thomas, previously backed a separate, more stringent test that instead said that wetlands should have a “continuous surface water connection.”

But, Schiff argued in favor of a separate test that may be even more difficult to achieve — saying that waters like wetlands could also be regulated if they can support interstate commerce. 

The case comes at a time of heightened liberal distrust in the court, especially following its high profile decision to overturn Roe v. Wade.

 The court has also recently taken a conservative, deregulatory position  in a case where it limited the scope of the EPA’s ability to regulate power plants’ contribution to climate change. 

Tags Amy Coney Barrett Brett Kavanaugh Brett Kavanaugh Clean Water Act John Roberts Ketanji Brown Jackson Ketanji Brown Jackson Supreme Court wetlands

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