APU Legal Studies Original

The Supreme Court Reduces the Authority of the EPA

In May 2023, the Supreme Court published a decision on a case, Sackett v. Environmental Protection Agency et al, that changed the authority of the Environmental Protection Agency (EPA). This decision may have significant effects on environmental law and has garnered widespread attention from both conservatives and liberals.

What Happened between the Sacketts and the EPA?

Sackett is one of those cases that will be taught in law schools for a long time. It is a classic example of the importance of doctrine, governmental power and the complexities of the legal system.

In 2004, Michael and Chantell Sackett purchased land about 300 feet from Priest Lake, Idaho, planning to build a home. To prepare for the construction of their home, the Sacketts had to backfill their lot with a significant amount of dirt.

The Sacketts then received a notice from the EPA, telling them to stop the backfilling because it was “polluting the waters of the United States.” According to the EPA, their property contained wetlands, making the backfilling a violation of the Clean Water Act. If the Sacketts failed to act, the EPA said that it would levy a fine of up to $40,000 per day.

The Clean Water Act of 1972 has jurisdiction over “the waters of the United States.” But why did that affect the Sacketts’ property? According to the EPA, their wetlands were near a ditch that fed into a creek, which in turn fed into Priest Lake. That lake is an interstate lake.

The Sacketts alleged that this definition was an overreach of authority by the EPA. It took over 16 years for this case to be resolved, but recently, the Supreme Court ruled in favor of the Sacketts.

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Defining ‘The Waters of the United States’

According to the Supreme Court’s decision, the EPA argued that the “wetlands” on the Sacketts’ lot were “adjacent to” (in the same neighborhood as) an “unnamed tributary” (the ditch). Water from the ditch flowed into a creek and traveled into Priest Lake.

The EPA also noted that Priest Lake is an interstate body of water. To establish a significant connection, the EPA compared the Sacketts’ lot to the Kalispell Bay Fen, a large nearby wetland complex that the EPA calls “similarly situated.”

According to the EPA, these two properties “significantly affect” the ecology of Priest Lake. The basis for the EPA’s case was that the Sacketts had illegally dumped soil and gravel into “the waters of the United States.”

Justice Alito, who wrote the Supreme Court’s majority opinion, explained that the EPA overreached its authority. Alito explained that the Clean Water Act gives EPA jurisdiction over wetlands only when they are adjacent to and indistinguishable from the waters of the United States.

What makes wetlands adjacent to the waters of the United States? The Supreme Court ultimately said that wetlands are seen as “indistinguishable” from the waters of the United States only when there is “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.”

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Reactions to the Sackett v. EPA Et Al Case

This Supreme Court decision got immediate attention; it is criticized by some on the left as posing a real danger to the environment. Richard Lazarus from The Washington Post characterized the decision as gutting the Clean Water Act.

He wrote, “Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into ‘navigable waters,’ but Congress also expressly defined that to include all ‘waters of the United States.’

“Since the mid-1970s, the courts have uniformly agreed that Congress intended with that expansive definition to extend the law’s protections far beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into the nation’s major rivers and lakes.”

The crux of this argument is that waterways are interconnected and that taking out the EPA’s authority will lead states to use different criteria when deciding what water is being polluted.

From the right, the argument was that the EPA went into places it had no business going and taking power that Congress did not intend the executive branch to have. The Wall Street Journal dedicated an opinion piece by its Editorial Board to this issue and did not mince words.

According to the WSJ Editorial Board, “​​Americans anywhere in the country could have their backyard declared a wetland, but they wouldn’t know it until the EPA swoops in and threatens enormous penalties for pouring herbicide on weeds. EPA advises landowners to solicit the Army Corps’ opinion before doing anything with their property. But 75% of the time the Corps claims jurisdiction. 

“Does federal jurisdiction really ‘encompass any backyard that is soggy enough for some minimum period of time?’ Justice Samuel Alito asks in the majority opinion, ‘How about ditches, swimming pools, and puddles?’

“The current High Court’s project reining in a runaway administrative state is one of the most important in Court history. The Sacketts’ victory after their long ordeal is a triumph for the liberty of every American.”

The decision in the Sackett case is necessary reading for anyone interested not only in law but public policy. It tells the story of different positions concerning governmental rights and the fact that Congress has a hard time designing specific legislation. It also makes it clear that fighting the government requires resources and time that most people simply do not have.

The Supreme Court Is Telling Congress to Write Its Legislation More Carefully

With the Clean Water Act, Congress created a law that was open to broad interpretation and gave regional EPA offices a very wide array of possible interpretations. With its decision in the Sackett v. EPA et al case, the Supreme Court is telling Congress to craft its legislation more carefully to avoid any misinterpretation in the future.

Ilan Fuchs

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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