Idaho case changes application of Clean Water Act to wetlands.
washington • The Supreme Court on Thursday made it harder for the federal government to monitor water pollution by removing protections for wetlands isolated from larger bodies of water in a decision.
It is the second decision in as many years that a conservative majority of the court has narrowed the scope of environmental legislation.
In a ruling in favor of an Idaho couple planning to build a home near Priest Lake in the state’s slum, judges strengthened property rights over concerns about clean water. Chantell and Michael Sackett protested when federal officials identified a wet portion of the property as a wetland and therefore had to obtain a permit before construction.
By a vote of 5 to 4, in an opinion by Judge Samuel Alito, the court ruled that wetlands can only be regulated if they have a “continuous surface connection” to larger, regulated bodies of water.
The court overturned the 17-year-old opinion of his former colleague Anthony Kennedy and allowed regulation of wetlands that have a “significant connection” to major waterways.
Kennedy’s opinion was the yardstick for judging whether wetlands were covered under the Clean Water Act. Opponents have objected that the standard is vague and unworkable.
Environmentalists had predicted that reducing the scope of this law would result in more than half of the country’s wetlands being deprotected.
In response to the decision, Manish Bapna, the executive director of the Natural Resources Defense Counsel, urged Congress to amend the Clean Water Act to restore wetland protections and urged states to strengthen their own laws.
“The Supreme Court has ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable damage. Communities across the country will pay the price,” Bapna said in a statement.
The outcome will almost certainly have implications for ongoing court battles over new wetland regulations introduced by the Biden administration in December. Two federal judges have temporarily blocked enforcement of these rules in 26 states.
In Thursday’s decision, all nine judges agreed that the wetlands on the Sacketts’ property are not covered by the law.
But only five judges subscribed to the opinion, which called for a new test for assessing when wetlands fall under the Clean Water Act.
Conservative Brett Kavanaugh and the court’s three Liberal justices accused their peers of having rewritten that law.
Kavanaugh wrote that the court’s “new and too narrow test could result in long-regulated and long-considered-regulatable wetlands suddenly being placed outside the purview of the agencies’ regulatory authority.”
Judge Elena Kagan wrote that the majority rewrite of the law “was an attempt to suppress what Congress deemed appropriate to combat pollution.” Kagan referred to last year’s decision to cap regulation of greenhouse gas emissions under the Clean Air Act.
In both cases, the court “proclaimed itself the national decision-maker in environmental policy,” she stressed. Kagan was supported in her writing by her fellow liberals Sonia Sotomayor and Ketanji Brown Jackson.