Supreme Court decision in wetlands case will impair flood control, affect water quality, Kavanaugh warns
The U.S. Supreme Court ruled against the U.S. Environmental Protection Agency on Thursday in its bid to classify an Idaho property as protected wetlands.
Under the Clean Water Act, the EPA has jurisdiction over “navigable waters,” which includes streams, oceans, rivers and lakes, Alito wrote. A wetland does not fall within EPA jurisdiction. unless there is a “continuous surface connection” to those bodies of water, he said.
“In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States,’” Alito wrote, quoting from a prior plurality decision.
The Sacketts’ wetlands property is distinguishable, meaning that the EPA has no jurisdiction over it, Alito said.
The Supreme Court’s decision limits the EPA’s ability to regulate water pollution, according to coverage of the case by the New York Times. The Supreme Court already curbed the EPA’s ability to regulate climate change in a June 2022 decision.
Alito’s opinion was fully joined by all the conservative justices, with the exception of Justice Brett Kavanaugh, who nonetheless concurred in the judgment.
Kavanaugh and the Supreme Court’s three liberal justices agreed that the wetlands on the Sacketts’ property were not covered by the Clean Water Act. But they disagreed with the majority’s test for assessing when wetlands are covered by the law.
Kavanaugh said in his concurrence “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
The Sacketts were represented by the Pacific Legal Foundation, a public interest law firm. Damien Schiff, a senior attorney with the foundation, called the decision “a profound win for property rights and the constitutional separation of powers” in a press release.
The case is Sackett v. Environmental Protection Agency.
Hat tip to SCOTUSblog.