SUZANNAH FRISCIA—After closing out the 2021-2022 term with West Virginia v. Environmental Protection Agency, a major environmental case, the Supreme Court started its new term on October 3 and in some ways picked up right where it left off. The Justices heard oral arguments for Sackett v. Environmental Protection Agency, another case with major implications for the future of environmental law, which also considers the overall reach of the EPA’s power. This time, the Court will consider the EPA’s authority over regulating wetlands, and the justices’ decision will affect how the Clean Water Act may be interpreted in future cases.
This is not the first time Sackett has come before the Supreme Court. This case is the culmination of a 15-year saga that initially began in 2007, when Michael and Chantell Sackett sought to begin construction on an undeveloped parcel of land in Idaho. The couple had purchased the lot, which sits 300 feet from Priest Lake near the Canadian border, in 2004 with the intention of building a new home on it. Shortly after beginning construction, the EPA ordered the couple to halt, stating that the lot contained wetlands that are protected by the Clean Water Act, and required a permit to be filled. The Sacketts were issued a compliance order from the EPA stating that, if they did not restore the land to its original condition by the five-month deadline, the couple would be subject to fines and penalties of over $40,000 per day.
The Sacketts challenged the EPA’s authority to regulate the lot under the Clean Water Act, and argued that issuing the compliance order was “arbitrary and capricious” under the Administrative Procedure Act (“APA”). The initial case made its way from federal court all the way up to the Supreme Court in 2012. At that time, the justices did not decide the case on its merits, choosing only to rule on whether or not the EPA’s compliance order constituted a “final agency action” subject to APA review. The Court held that the Clean Water Act did not preclude the Sacketts from litigating their challenge to the EPA in federal court.
Since then, the case has made its way from a district court in Idaho, which ruled for the EPA; to the U.S. Court of Appeals for the 9th Circuit, which affirmed the judgment; and now back to the Supreme Court, which will decide whether the 9th Circuit used the correct test in determining whether the wetlands on the Sacketts’ property fall within the provisions of the Clean Water Act.
At issue here is a debate about the meaning of fundamental terms within the Clean Water Act. The Act prohibits the discharge of pollutants into navigable waters without obtaining a permit. It defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” Pollutants can include rocks and sand, which the Sacketts used to fill in the wetlands as part of their preparations for construction. Navigable waters are defined as “the waters of the United States, including the territorial seas.” The Act does not specifically define “waters of the United States,” but the phrase has been interpreted in several previous Supreme Court decisions. Most recently, in Rapanos v. United States, the plurality’s decision, written by Justice Antonin Scalia, concluded that waters of the United States include “relatively permanent, standing or continuously flowing bodies of water,” and that wetlands fall under the definition if they have “a continuous surface connection” to one of these water bodies. The Sacketts are advocating for the use of this test.
In a concurrence in Rapanos, Justice Anthony Kennedy laid out another, broader test for wetlands known as the “significant nexus” test. Under this test, wetlands with a “significant nexus” to the more traditional navigable waters are also protected. A wetland can be adjacent to another water body and pass this test as long as that wetland, “either alone or in combination with similarly situated lands in the region, significantly affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Since Rapanos, most federal courts have applied the “significant nexus” test.
The Court’s decision on how to define “waters of the United States” could significantly impact the EPA’s ability to regulate wetlands. Environmental groups worry that, if the Court adopts the test advocated by the Sacketts, more wetlands will be excluded from the Clean Water Act’s protection. This would have broad reaching environmental impacts; because of their ability to act as carbon sinks, absorbing carbon dioxide and helping filter pollutants, wetlands play an important role in their ecosystems, and are an asset in the fight to slow climate change. Additionally, the Court’s decision about the EPA’s interpretation of “waters of the United States” could have further implications for other agencies and how much deference courts should give them. The stakes for the future of the Clean Water Act—as they were for the Clean Air Act when the Court heard West Virginia v. EPA—are high, and Sackett is a case worth keeping an eye on.
