SCOTUS weakens EPA power to enforce

CLEAN WATER ACT

BY ANN E. MARIMOW ,T IMOTHY PUKO AND ROBERT B ARNES The Washington Post

The Supreme Court on Thursday cut back the power of the Environmental Protection Agency to regulate the nation's wetlands and waterways, another setback for the agency's authority to combat pollution.

At issue was the reach of the landmark, 51-year-old Clean Water Act and how courts should determine what count as "waters of the United States" under protection of the law. Nearly two decades ago, the court ruled that wetlands are protected by the Clean Water Act if they have a "significant nexus" to regulated waters. Property rights and business groups wanted to narrow regulations to wetlands and other areas directly connected to "navigable waters" such as rivers and lakes.

But Justice Samuel A. Alito, writing for the majority in the 5 to 4 opinion, said the EPA's interpretation of its powers went too far.

"We hold 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," Alito wrote, quoting from past court opinions.

Justice Elena Kagan wrote for the court's liberals, comparing the ruling to last term's decision limiting the EPA's ability to combat climate change.

"The vice in both instances is the same: the Court's appointment of itself as the national decision-maker on environmental policy," she wrote, joined by Justice Sonia Sotomayor and Ketanji Brown Jackson.

Justice Brett M. Kavanaugh wrote separately to object to the majority's reading of the law. He wrote that the majority's new test "departs from the statutory text, from 45 years of consistent agency practice, and from this Court's precedents" and will have "significant repercussions for water quality and flood control throughout the United States." Kagan, Sotomayor and Jackson joined Kavanaugh.

The justices were reviewing for a second time the case of an Idaho couple, Michael and Chantell Sackett, who are fighting to build a home on their property near Priest Lake, one of the state's largest. The EPA says there are

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wetlands on the couple's 0.63-acre lot, which makes it subject to the Clean Water Act and allows the government to require permits and impose penalties for violations.

Environmental advocates asked the court to retain the government's authority to protect and regulate waterways that significantly affect downstream water quality and warned that developers would take advantage of weaker regulations. Under the Sacketts' proposed definition of the law, they said, about half of all wetlands and roughly 60 percent of streams would no longer be federally protected.

The ruling is the second major environmental decision by the court in about a year. Last term, the court's conservative majority restricted the EPA's authority to curb emissions from power plants.

The Sacketts, backed by the conservative Pacific Legal Foundation, obtained a local building permit 15 years ago to begin construction on their land, about 300 feet from the lake. Their plot is bounded on two sides by roads and separated from the lake by a row of homes.

The EPA put the plans on hold, threatening fines of more than $40,000 per day if the Sacketts did not stop construction. The couple went to court to block the EPA order and asked the justices to narrow the definition of "waters of the United States" so that their land is not covered by the Clean Water Act.

The Biden administration and environmental groups have argued for preserving broader federal authority over such matters. Narrowing the reach of the law would undermine the government's ability to protect wetlands that, for instance, are separated from a river by a small dune but still affect that river's chemical, physical and biological integrity.

Four presidential administrations have now been mired in the fight over what constitutes a wetland. The George W. Bush administration first issued guidance limiting the reach of the Clean Water Act in 2003 and 2008, after earlier Supreme Court decisions.

In 2015 the Obama administration widened the scope of the law to cover even ephemeral streams and ponds. North Dakota, Wyoming, Alaska and other states immediately sued in federal court, resulting in a nationwide stay from a federal appeals court in Ohio. As the challenges dragged on and led to a slew of different rulings, the Trump-era EPA repealed the rule and in 2019 created a new, weaker rule.

The Biden administration has tried to strike a balance by undoing the Trump-era rule and redefining EPA oversight as covering "traditional navigable waters," including interstate waterways and upstream water sources that influence the health and quality of those waterways. The definition is based on a legal framework established before 2015 - attempting to avoid going as far as the Obama-era rule - with adjustments based on court rulings and newer science, the EPA has said.

Attorney Rafe Petersen, who represents miners, offshore wind developers and others seeking EPA permits, said the court decisions and rule changes over the years have made the water rules some of the most difficult for businesses to deal with.

A court decision against the EPA, he added, likely leaves the Biden administration to start all over again from scratch.

"I don't see how they get away from that," Petersen said. "The Biden administration is really boxed into the corner."

The case is Sackett v. Environmental Protection Agency