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The Supreme Court on Thursday cut back the power of the Environmental Protection Agency to regulate the nation’s wetlands, another setback for the agency’s authority to combat air and water 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 if they have a “significant nexus” to nearby regulated waters.
Justice Samuel A. Alito Jr., writing for himself and four other of the court’s conservatives, rejected that test and imposed one that environmentalists say will remove millions of acres of environmentally sensitive land from federal regulation.
“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. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.
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All of the justices agreed that federal regulators went too far in the case at hand, which involved an Idaho couple’s quest to build a home near a lake. But instead of a narrow decision saying just that, the court majority sided with a decades-long effort by property rights groups and businesses to narrow regulations to wetlands and other areas directly connected to “navigable waters” such as rivers and lakes.
Justice Elena Kagan objected on behalf of the court’s liberals, saying her conservative colleagues on Thursday showed the same zeal they had displayed last term in limiting the EPA’s ability to combat climate change.
There, the majority “barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands,” wrote Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
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“The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.”
All three justices joined an opinion by Justice Brett M. Kavanaugh, who had been in the majority in the climate change case.
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.” He mentioned levee systems along the Mississippi River and projects to clean up the Chesapeake Bay as initiatives that might suffer under the majority’s new rules.
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Supreme Court 2023 decisions
Over the next two months, the Supreme Court will announce decisions on all the cases it heard this term. We’re tracking major decisions here and why they matter.
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The ruling affects one of the most fundamental authorities at the EPA, its ability to extend protections to upstream waters in order to protect downstream water quality for drinking and wildlife. It will prevent the agency from putting federal protections on as much as 118 million acres of wetlands, an area larger than the landmass of California, according to estimates from the environmental firm Earthjustice.
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It gives a win to farmers, home builders and other developers that will now probably find it easier to get permits to build, lawyers and trade groups said. And it probably will force the Biden administration to abandon — or at least restart — an effort it began in 2021 to resolve years of uncertainty with new definitions on the type of waterways EPA rules can protect, leaving more of that power up to state governments, lawyers and legal experts said.
“I don’t see how they get away from that,” said attorney Rafe Petersen, who represents miners, offshore wind developers and others seeking EPA permits for the firm Holland & Knight. “The Biden administration is really boxed into the corner.”
The impact will vary from state to state, said Jonathan H. Adler, a law professor at Case Western Reserve University, depending on how stringently those jurisdictions regulate wetlands and other issues.
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Administration officials called the decision a disappointment that erodes long-standing protections. And officials at both the EPA and the White House said administration lawyers will be reviewing the ruling to determine President Biden’s next steps.
The president in a statement called it a “disappointing decision” that “will take our country backwards.”
“Today’s decision upends the legal framework that has protected America’s waters for decades,” Biden said. “It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.”
The justices were reviewing for a second time the plans of Michael and Chantell Sackett, who want to build a home on their property near Priest Lake, one of the Idaho’s largest. The EPA says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the CWA and allows the government to require permits and impose penalties for violations.
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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.
Along with other legal observers, Petersen said the latest ruling could have far-reaching consequences. Alito’s decision says the court requires Congress “to enact exceedingly clear language” on rules that may affect private property, which some lawyers said may bring a new level of scrutiny to other bedrock environmental standards aimed at addressing air pollution and climate change.
“This can be read to call into question virtually any modern environmental regulation,” said Sam Sankar, senior vice president for programs at Earthjustice, which filed briefs in the case on behalf of 18 Native American tribes. “Polluters will certainly read this as an indication it’s open season on environmental law.”
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Adler said he was unsure about that. “I don’t think there’s anything new” in Alito’s requirement of a clear statement in the law, he said. But he agreed the court is certainly showing a skepticism of agency powers and its broad readings of statutes.
How Supreme Court’s EPA ruling will affect U.S. wetlands, clean water
In a sense, the court was revisiting a decision it made 17 years ago, when it also was divided on the question. In that case, Rapanos v. United States, Justice Antonin Scalia wrote for four justices that only wetlands with “a continuous surface connection” to “relatively permanent” bodies of water can be regulated under the law.
But the prevailing test in Rapanos was one from now-retired Justice Anthony M. Kennedy, who said there needs to be only a “significant nexus” between the wetlands and the regulated waters.
Adler noted that none of the justices endorsed the “significant nexus” rule, and Alito’s test in essence substitutes the Scalia test.
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Alito praised the Clean Water Act as a “great success” but also said it could be a “potent weapon” for federal regulators.
“Regulation of land and water use lies at the core of traditional state authority,” he wrote. “An overly broad interpretation of the CWA’s reach would impinge on this authority. The area covered by wetlands alone is vast — greater than the combined surface area of California and Texas. And the scope of the EPA’s conception of ‘the waters of the United States’ is truly staggering.”
Kagan said Alito’s emphasis was wrong. She said he puts “a thumb on the scale for property owners — no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”
Kavanaugh said the majority was misinterpreting the law’s language. All agree that wetlands adjoining regulated waters are included, he said, but it also provides for those adjacent to the waters.
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Throughout 45 years “and across all eight Presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a manmade dike or barrier, natural river berm, beach dune, or the like,” Kavanaugh wrote. His opinion was joined by Kagan, Sotomayor and Jackson.
“We should not create ambiguity where none exists,” Kavanaugh wrote. “And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining,’ as the Court does today.”
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 fight over what constitutes a wetland subject to the CWA has raged for decades. 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 one.
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 case is Sackett v. Environmental Protection Agency.
FAQs
Supreme Court weakens EPA power to enforce Clean Water Act? ›
The Supreme Court on Thursday cut back the power of the Environmental Protection Agency to regulate the nation's wetlands, another setback for the agency's authority to combat air and water pollution.
Did the Supreme Court change the Clean Water Act? ›The Supreme Court narrowed the protections of the Clean Water Act in an opinion Thursday, finding the law only covered wetlands and other bodies of water that directly connect to federal waters like rivers and lakes. The opinion issued in Sackett v.
How Supreme Court's EPA ruling will affect U.S. wetlands clean water? ›Supreme Court limits federal power over wetlands, boosts property rights over clean water. The Supreme Court on Thursday made it harder for the federal government to police water pollution in a decision that strips protections from wetlands that are isolated from larger bodies of water.
Does the EPA enforce the Clean Water Act? ›EPA enforces requirements under the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA). For more on EPA's enforcement process, go to basic information on enforcement.
Why was the Clean Water Act unsuccessful? ›But while the Clean Water Act effectively targeted “point sources” of pollution, such as factories and sewage plants, it didn't include strong controls for “non-point sources,” such as farm field runoff. And over the past 50 years, farming—especially animal agriculture—has changed dramatically.
Why is the Clean Water Act controversial? ›The CWA has always been controversial, especially for its notoriously vague definition of navigable waters: “waters of the United States, including the territorial seas.” Some argue that the definition of waters of the United States, often called WOTUS, should be broad, thus allowing the federal government to secure ...
How many times has the Clean Water Act been violated? ›Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves.
What is the biggest problem with the Clean Water Act? ›Shortcomings of the Clean Water Act and its Implementation
Beyond its language, the Clean Water Act fails to regulate “nonpoint source pollution,” or pollution that doesn't come from a discrete location, such as agricultural runoff.
Fifty years ago, the Congress passed the Clean Water Act of 1972, revolutionizing America's responsibility to protect and restore the vital waterways that sustain our communities, our economy, and our ecosystems.
What is the Supreme Court Clean Water Act 401? ›Under federal Clean Water Act (CWA) section 401 every applicant for a federal permit or license for any activity which may result in a discharge to a water body must obtain State Water Quality Certification (Certification) that the proposed activity will comply with state water quality standards.
Who controls the Clean Water Act? ›
"Clean Water Act" became the Act's common name with amendments in 1972. Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. EPA has also developed national water quality criteria recommendations for pollutants in surface waters.
Which part of the government has authority to enforce the Clean Water Act? ›EPA's primary enforcement authorities are set forth in CWA § 309. EPA is authorized under CWA § 309(a) to issue an order requiring a “person” to comply with specified CWA sections (including section 301, the prohibition against unpermitted discharges, or requirements of permits under section 402 or 404).
Is the Clean Water Act federal or state? ›Growing public awareness and concern for controlling water pollution led to enactment of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251 et seq.). As amended in 1977 (P.L. 95-217), this law became commonly known as the Clean Water Act (CWA).
Was the Clean Water Act a success or failure? ›More than fifty years later, the Clean Water Act has funded approximately 35,000 grants totaling $1 trillion invested towards curbing water pollution. As a result, 700 billion pounds of pollution have been diverted from America's rivers and the number of waters that meet clean water goals has doubled since 1972.
What disaster caused the Clean Water Act? ›But outrage over a 1969 Cuyahoga fire — the latest in a series of environmental disasters including a 3-million-gallon oil spill off California's Santa Barbara months earlier — is widely credited with inspiring the Clean Water Act of 1972.
What are the modern challenges of the Clean Water Act? ›Water quality challenges such as excessive nutrients, climate change, emerging contaminants, and the development of new technologies were never contemplated by the Act's authors, and its command-and-control structure is proving incapable of adapting to modern water quality needs.
Is clean water a constitutional right? ›Since 2012, California law (Assembly Bill 685) has declared that every person in the state has a right to clean, safe, and affordable drinking water.
Why is the Clean Water Act constitutional? ›Like every law of the land, the Clean Water Act (CWA) finds its legal basis in the United States Constitution. The Commerce Clause, Article I, Section 8 of the Constitution grants Congress the power to regulate intra and interstate commerce.
Is the Clean Water Act cost effective? ›The Clean Water Act's grantmaking system creates higher costs than market-based regulations, argue Keiser and Shapiro. For instance, the Clean Water Act's grantmaking program has cost the U.S. government about $650 billion total, or about $1.5 million per year to make one mile of river fishable.
How many U.S. citizens don't have access to clean water? ›More than 46 million people in the U.S. live with water insecurity—either no running water or water that may be unsafe to drink.
How safe are U.S. rivers 50 years after the Clean Water Act? ›
Fifty Years After the Clean Water Act, Half of U.S. Waters Are Unsafe for Humans and Fish. A study of U.S. waterways shows that around half of lakes, rivers, and streams in the U.S. are too toxic to swim or fish in.
What is the penalty for violating the EPA Clean Water Act? ›Penalty: Maximum fine $250,000 and/or maximum imprisonment 5 years under 18 USC 3571. [see USC 1415 (b)] Forfeiture to the U.S., any proceeds from violation and any property used in violation.
What is the major federal law affecting the water utility industry? ›The Safe Drinking Water Act (SDWA) is the main federal law that ensures the quality of Americans' drinking water. Under SDWA, EPA sets standards for drinking water quality and oversees the states, localities, and water suppliers who implement those standards.
What is true about the Clean Water Act? ›The Clean Water Act (CWA) establishes the basic structure for regulating pollution in U.S. waters. It gives Americans a right to waterways that are clean, biologically intact, and safe for use, and includes an array of protections and programs to reach that goal.
What is the difference between the Clean Water Act and the Safe Drinking Water Act? ›The CWA focuses on protecting the quality of navigable water by ensuring they are fishable and swimmable, while the SDWA focuses on public health and source water protection.
When was the last amendment to the Clean Water Act? ›The Federal Water Pollution Control Act of 1948 was the first major U.S. law to address water pollution. Growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972. As amended in 1972, the law became commonly known as the Clean Water Act (CWA).
Which of the following has been significantly decreased due to regulations from the Clean Water Act? ›114) Which of the following has been significantly decreased due to regulations from the Clean Water Act? the capacity to do work.
What is Section 319 of the Federal Clean Water Act? ›The 1987 amendments to the Clean Water Act (CWA) established the Section 319 Nonpoint Source Management Program Section 319 addresses the need for greater federal leadership to help focus state and local nonpoint source efforts.
What is Section 402 of the Federal Clean Water Act? ›Section 402 of the Clean Water Act requires that a discharge of any pollutant or combination of pollutants to surface waters that are deemed waters of the United States be regulated by a National Pollutant Discharge Elimination System (NPDES) permit.
What is Section 405 of the Clean Water Act? ›Section 405(d) of the CWA requires EPA to: Establish numeric limits and management practices that protect public health and the environment from the reasonably anticipated adverse effects of chemical and microbial pollutants during the use or disposal of sewage sludge.
What jurisdiction does the Clean Water Act have? ›
The 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” defined in the Act as the “waters of the United States” (CWA Section 502(7)).
Who created the EPA and Clean Water Act? ›EPA was created on December 2, 1970, by President Richard Nixon to protect human health and the environment.
Who sets and enforces clean water regulations? ›The U. S. Environmental Protection Agency (EPA) sets standards and regulations for many different contaminants in public drinking water, including disease-causing germs and chemicals. Read the information below to learn more about EPA's drinking water regulations.
How are the EPA and state governments involved in enforcement of the Clean Water Act? ›EPA works with its federal, state and tribal regulatory partners to monitor and ensure compliance with clean water laws and regulations in order to protect human health and the environment. The Clean Water Act is the primary federal law governing water pollution.
Which part of the government has authority to enforce the Clean Water Act quizlet? ›CWA authorizes EPA to enforce this policy. This policy prohibits the deterioration of water bodies when their quality equals or exceeds levels necessary to attain water quality standards.
Is the Clean Water Act command and control? ›Just two years later, in 1972, Congress passed and the president signed the far-reaching Clean Water Act. These command-and-control environmental laws, and their amendments and updates, have been largely responsible for cleaner air and water in the United States in recent decades.
Who does not have access to clean water in the United States? ›What percentage of Americans have no clean water? There are approximately 2 million out of 328 million people who do not have access to clean drinking water in the United States. In other words, 0.6% of the American population does not have access to clean drinking water.
When was the Clean Water Act changed? ›The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972.
Is the Clean Water Act still around today? ›Congress passed the Clean Water Act in 1972 to protect all "waters of the United States.” Fifty years later, the law is still the main way we are able to safeguard our nation's waters from pollution and destruction, protecting public health and wildlife habitat.
Have there been any amendments to the Clean Water Act? ›Congress made fine-tuning amendments in 1977, revised portions of the law in 1981, and enacted further amendments in 1987 and 2014.
What did the Clean Water Act change? ›
The Clean Water Act has been successful at reducing pollution that enters our rivers and lakes from 'point sources. ' These are single, identifiable sources of pollution like wastewater treatment plants and factories.
Which president passed the Clean Water Act? ›Many small towns were simply dumping raw sewage into the river that flowed past the nation's capital and into the Chesapeake Bay. Anyone who fell into the Potomac was advised to get a tetanus shot. All that began to change on November 3, 1966, when President Lyndon Johnson signed the Clean Waters Restoration Act.
Has the Clean Water Act been successful? ›Though the law has been successful in keeping untreated sewage out of rivers and made progress in eliminating industrial pollution from rivers, it has been less successful in reducing non-point-source pollution, including nutrient pollution, said Neal McAliley, an environmental lawyer at Carlton Fields PA in Miami.
What are the criticisms of the Clean Water Act? ›Despite this, the Clean Water Act has been controversial, for two reasons. First, there is no clear evidence that the Clean Water Act has decreased pollution, or even whether water pollution has fallen(Adler et al. 1993). Second, some argue that the Clean Water Act's costs have exceeded its benefits.
What are the weaknesses of the Clean Water Act? ›Apart from underregulating nonpoint sources, the Clean Water Act's primary tools have failed to fully protect urban waterways. Studies show that urban waters are disproportionately degraded and unlikely to meet water quality standards because of polluted stormwater.
What is Biden doing about water pollution? ›President Biden has secured historic resources to address emerging containments like PFAS. His Bipartisan Infrastructure Law invests $9 billion over five years to help communities that are on the frontlines of PFAS and other contamination reduce levels in drinking water.
Did the EPA finalize the water rule that repeals Trump era changes? ›ST. LOUIS (AP) — President Joe Biden's administration on Friday finalized regulations that protect hundreds of thousands of small streams, wetlands and other waterways, repealing a Trump-era rule that federal courts had thrown out and that environmentalists said left waterways vulnerable to pollution.
What is the new waters of the US rule? ›The new WOTUS rule has a three-factor definition to determine what is considered waters of the United States. The three factors are the presence of particular wetland hydrology, soils, and vegetation.
What is the EPA water rule? ›Overview. EPA sets legal limits on over 90 contaminants in drinking water. The legal limit for a contaminant reflects the level that protects human health and that water systems can achieve using the best available technology. EPA rules also set water-testing schedules and methods that water systems must follow.