Slicing Away at Regulatory Statutes

In its June 2023 decision in Sackett v. EPA,¹⁾ the U.S. Supreme Court interpreted the Clean Water Act of 1972 to significantly cut back its water pollution protections and to hand an important victory to private property owners.  Sackett is not simply important for its impact on environmental protection.  Although it may be among the Court’s less visible recent rulings, it follows the Court’s trend of anti-administrativist rulings and may add importantly to the Court’s kit of anti-regulatory interpretive tools.

Wetlands Protection Prior to Sackett  

The Clean Water Act is the most important federal statute protecting oceans, lakes, rivers, and their major tributaries from water pollution.  Its central regulatory program, which requires a permit for any discharge of fill or pollutants, extends to “navigable waters,” which the statute defines as “waters of the United States”,  33 U.S.C. 1362(7) (Clean Water Act sec. 502(7)). The question in Sackett was whether this jurisdictional language covered a particular, small area of wetlands.

Before getting to the details of the case, some further background is necessary, so bear with me.  Wetlands such as marshes and bogs are environmentally critical; they trap and filter pollutants before they reach other waterbodies, and they provide flood control and important plant and animal habitat.  But wetlands have long been a legal sore spot, as they are not traditionally navigable and do not fit neatly into the Clean Water Act’s jurisdictional language.  Meanwhile, residential and commercial land developers and farmers have steadfastly resisted government wetlands regulation limiting the extent to which they can fill, destroy, or otherwise impair wetlands located on their properties.

Previous Supreme Court rulings addressing the extent of Clean Water Act protection for wetlands created confusion and uncertainty. Since 2006, the government’s reading of the Court’s rulings prompted agencies to conduct case-by-case analysis of wetlands to assess whether they (solely or together with similarly situated wetlands) might have a “significant nexus” with a traditionally navigable waterbody, including through their impact on the quality of the waterbody’s tributaries.  These determinations of which wetlands might be “jurisdictional” were heavily factual and perceived to be unpredictable; they were also slow.  One point of relative clarity, however: since 1978, the Environmental Protection Agency had consistently taken the position that wetlands “adjacent” to “covered waters” – navigable waters and their tributaries – were protected, and such “adjacent” wetlands included those separated by a dike, berm, dune, or similar barrier. This position recognized the ecological importance of wetlands even if they were not directly adjoining such a waterway.  Without the wetlands, for example, more pollutants could readily flow into waterways.

The Sacketts’ wetlands fill and the Court’s resolution of the controversy

Chantell and Mike Sackett, the plaintiffs in Sackett v. EPA, are the owners of a fairly small wetlands-containing property of less than an acre.  They bought the property near Priest Lake, one of Idaho’s largest lakes, to build a vacation home.  The wetlands at issue were thirty feet away and across a road from a nonnavigable tributary (some called it a ditch), which flowed into a stream, which in turn flowed into Priest Lake.  The wetlands were located 300 feet from the lake itself.  The Sacketts were aware that the federal government viewed the wetlands on their property as federally protected, and they lacked the required permit, but nonetheless backfilled some of the wetlands with dirt.  The U.S. Environmental Protection Agency found that together with a larger group of similarly situated nearby wetlands, the Sackett property wetlands had a significant nexus to Priest Lake.  The agency ordered the Sacketts to halt the filling and restore the site, and it threatened penalties for noncompliance.

In response, the Sacketts filed suit challenging the agency’s jurisdiction over the wetlands.  The appellate court upheld the agency’s conclusion that the wetlands had a significant nexus to the lake; the court noted some subsurface flow and deferred to the agency’s conclusion that the wetlands were collectively important to maintaining the quality of Priest Lake’s water, fish, and wildlife.

Perhaps the case could have been narrowly resolved, because it concerned a small wetlands parcel separated from Priest Lake by a road as well as a ditch. Indeed, all nine Justices agreed the Sacketts should win.  But instead, the Court’s conservative majority, in an opinion written by Justice Alito and joined by Chief Justice Roberts and three others, ruled in a far broader manner.  They issued an opinion with grave implications both for the Clean Water Act’s scope and for the administrative state.

Justice Alito, writing for the majority, repeatedly expressed concern that the government was overreaching in regulating wetlands.  The majority opinion noted that the legal standard was unpredictable, the Act potentially applied to a “staggering array” of landowners, and the Act’s penalties could be “crushing,” and worried that faced with all this, a property owner might simply choose to “build nothing.” The opinion then concluded that the only wetlands protected under the Clean Water Act’s “waters of the United States” language are those that directly abut and possess a continuous surface connection to other covered “waters.”  He went further: while waters protected by the statute could include traditionally navigable waters, the tributaries protected would only be those “relatively permanent” bodies of water with a “continuous surface connection” to traditionally navigable waters.  Because the Sacketts’ wetlands lacked a continuous surface connection to any other body of water, the Court ruled in their favor.  The other four Justices concurred in the ruling in the Sacketts’ favor but objected to the Court’s interpretation regarding adjacent wetlands, reasoning (as had the government) that the Act should have been interpreted to protect “adjacent” wetlands that were near, but not directly adjoining other waters.

The implications of the Sackett v. United States for U.S. waterbody protection

Sackett v. EPA undercuts federal water pollution protection in important ways.  Wetlands separated only by a dune, berm, or similar from covered waters have lost their federal protection.  This is far more serious than it may initially sound.  One estimate is that up to 50% of wetlands previously protected as “adjacent” will lose federal protection as a result of the Sackett decision.²⁾ This will cause greater pollution in waterbodies such as the Mississippi River, Chesapeake Bay, and Great Lakes.  In intervening on behalf of the Sacketts, the Court was willing to disrupt decades of established administrative practice, removing protections to adjacent wetlands afforded even in the Trump Administration, which had notoriously sought to limit environmental protection in other ways.

Second, intermittently or ephemerally flowing streams, such as those dry during certain seasons, are also no longer protected because they may not be “permanent” and may lack a “continuous” connection with traditionally navigable waters, even if they may carry large volumes of water (along with sediment or pollutants) downstream at other times of year.  A sizeable percentage of streams may lose federal protection, possibly up to 80% of previously protected streams.³⁾

The Biden Administration responded to Sackett very simply by publishing, in September 2023, revised jurisdictional regulations that recited the language used by the Court.⁴⁾ The regulations stated that the Environmental Protection Agency and Army Corps of Engineers, the implementing agencies, would only exercise jurisdiction over “adjacent” wetlands, those with a “continuous surface connection” to tributaries, and that the only covered tributaries would be relatively permanent waterbodies with a “continuous surface connection” to traditionally navigable waters.⁵⁾  The Sackett Court reserved the possibility of protecting waterbodies even with “temporary” interruptions of that connection, as with “dry spells,”⁶⁾ but the Biden Administration has not yet offered further guidance.

Furthering the Court’s anti-regulatory, textualist agenda

Beyond its impact on marshes, bogs, and intermittent streams, the Sackett decision has far broader implications.  The Sackett opinion, like other recent decisions, focuses narrowly on statutory text.  For example, the Court selected a 1950s-era dictionary, published decades before the Act’s enactment, to conclude that the statutory term “waters” includes only those water features with continuous flow and a surface connection to traditionally navigable waters – and adopted a crabbed interpretation of “adjacent” wetlands, a phrase that also appears in the statute, to mean only those wetlands that directly “adjoin” covered waters. These textualist techniques downgrade attention to the statutory purposes and function.  They raise concerns that courts are merely manipulating the tools not to effectuate the statute, but to reach the judicially-preferred policy.   In this case, the majority disregarded arguments that the Clean Water Act’s overall purpose, in the words of the statute, of protecting the “physical, chemical, and biological integrity” of the Nation’s waters, required protecting nearby wetlands.

The Court’s focus on statutory text also meant disregarding the agencies’ consistent judgment across eight presidential administrations that the Clean Water Act was properly read to protect many wetlands near covered waters, not just those directly adjoining them. This was also in tension with the Court’s own decades-long approach of deferring to agency interpretations of unclear statutory language.   Such deference recognizes that the legislature has charged agencies with implementing often complex statutory regimes, as well as agencies’ typically superior expertise and democratic accountability for policy decisions.

Sackett joins similar recent cramped textualist decisions, including the Court’s rulings  striking down a program to regulate greenhouse gases from power plants in West Virginia v. Environmental Protection Agency and staying an occupational safety and health rule requiring large employers to ensure that employees in the workplace are either vaccinated for COVID or test for it.⁷⁾ In these cases, the Court also created a controversial new doctrine, which it named the major question doctrine, discussed further here.  Under that doctrine, U.S. courts are not to find that a statute authorizes an agency to act on an economically or politically significant “major” issue unless Congress has used clear language.  Broad or general language is insufficient. Congress, over the decades, deliberately drafted many regulatory statutes broadly to enable agencies to respond to new issues—as by authorizing the Food and Drug Administration to regulate “drugs,” say, not simply listing them.  A court’s identification of an issue as economically or politically significant thus effectively requires Congress to legislate twice to protect the public.  At a time when the U.S. Congress is notoriously gridlocked, the chances of new, specific legislation are vanishingly small.

But in the Sackett case, the Court may have birthed a new interpretive tool with even wider anti-regulatory application than the major question doctrine. In the recesses of the Sackett majority opinion, the Court stated that a statute must use “exceedingly clear language” in order to alter government power over private property.  Regulatory statutes, of course, generally are designed to do exactly that.  They affect the way people utilize their property or businesses when that impacts others or the public at large.  Further, this private property canon could have far broader implications than the major question doctrine, because it is not limited to “major questions” and because a statute, to survive interpretive limits on its application, must use not merely “clear” language, but “exceedingly clear” language.  The announcement of a brand-new canon that further impedes the application of regulatory statutes, as this one does, is of dubious legitimacy when applied to already-enacted statutes, let alone statutes like the Clean Water Act that were enacted decades ago.  Instead, the canon simply seems to be another tool for limiting the scope of statutes enacted to protect the environment, public health, and safety.

Sackett joins other recent decisions in which the Court has paid little heed to statutory purpose or agency views, instead using a cramped statutory interpretation approach to limit the administrative state’s authority to act to protect health, safety, and the environment.  In addition to reducing environmental protection for important water resources, Sackett’s interpretive style and proposal of a brand new private property canon should fuel concerns that the Court’s conservative majority continues to engage in interpretive gamesmanship to support an anti-regulatory agenda.