Submitted by Paul J. Sniadecki, MLSA Board Director (NOTE: The Artificial Intelligence (AI) feature in BING wrote this article. I did sparse editing to remove some political references that were not needed. BING AI lists the sources it used.)

On May 25, 2023, the Supreme Court (SCOTUS) ruled 5-4 that the Environmental Protection Agency (EPA) cannot regulate wetlands that are not directly connected to navigable waters under the Clean Water Act (CWA), a decision that could have significant implications for water quality and flood control across the country.

The case, Sackett v. EPA, involved a couple from Idaho who wanted to build a house on a vacant lot near a lake. The EPA ordered them to stop their construction and restore the land, claiming that it was a wetland that fell under the CWA’s jurisdiction. The couple challenged the order, arguing that their property was not a wetland and that the EPA had no authority to regulate it.

SCOTUS sided with the couple, holding that the CWA only covers wetlands that have a “continuous surface connection” to navigable waters, such as rivers, lakes, or oceans. Writing for the majority, Justice Samuel Alito said that the EPA’s interpretation of the CWA was too broad and vague, and that it would allow the agency to regulate “the entire land area of the United States.”

The majority opinion was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.

Justice Brett Kavanaugh wrote a separate opinion concurring in the judgment but dissenting from the majority’s reasoning. He agreed that the couple’s property was not a wetland under the CWA, but he criticized the majority for “rewriting” the law and ignoring its text and history. He said that the CWA also covers wetlands that are separated from navigable waters by natural or man-made barriers, such as dunes or dikes. He noted that this interpretation had been followed by eight different administrations since 1977.

Kavanaugh’s opinion was joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

The ruling is a setback for environmental groups and advocates who argued that protecting wetlands is essential for maintaining water quality, wildlife habitat, and flood prevention. They warned that the ruling could open up millions of acres of wetlands to pollution and development, and undermine the CWA’s goal of restoring and maintaining the nation’s waters.

The ruling is also a continuation of a trend in which the court has narrowed the scope of environmental regulations and favored property rights over federal authority. In recent years, the court has struck down or limited several EPA rules on greenhouse gas emissions, mercury pollution, and interstate air quality.

The case is one of several high-profile environmental cases on the court’s docket this term. The court is also expected to rule on cases involving oil pipeline permits, biofuel mandates, and endangered species protections.

Source: Conversation with Bing, 5/27/2023

(1) Supreme Court rolls back federal safeguards for wetlands under Clean …. https://www.cnn.com/2023/05/25/politics/supreme-court-wetlands-authority-epa/index.html.

(2) The Supreme Court case that’s likely to handcuff the Clean Water Act. https://www.vox.com/policy-and-politics/2022/9/27/23363959/supreme-court-clean-water-act-sackett-epa-rapanos-wetlands.

(3) Supreme Court weakens clean water protections in Sackett v. EPA ruling …. https://www.vox.com/2023/5/25/23737426/supreme-court-clean-water-act-epa-pollution-wetlands-sackett-alito.

(4) SUPREME COURT OF THE UNITED STATES. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.

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