In a Gift to Polluting Industries, Supreme Court Rolls Back Clean Water Act Protections

The vast majority of wetlands in the United States — more than 100 million acres — are no longer protected by the Clean Water Act, the Supreme Court ruled yesterday in Sackett v. EPA. Wetlands are critically important to clean drinking water and flood mitigation; they’re also effective at sequestering carbon and a boon to drought resilience, storing water during dry periods. But in a 5-4 vote, the Supreme Court brushed off peer-reviewed science and plain old common sense that you can’t protect the water downstream, which even the majority agreed is covered by the law, if you’re polluting it upstream.

The case was filed by a wealthy Idaho couple, Michael and Chantell Sackett, who were annoyed that they were required to get a special permit from the Environmental Protection Agency to build on their land because of its proximity to Priest Lake. The Sacketts’ land contains wetlands, but because the wetlands are separated from the lake by a road, they argued the permit was unnecessary. It’s almost certain they would have gotten the permit had they applied, but they opted to sue instead. The court took the Sacketts’ case as an opportunity to open up a broader discussion about what exactly the Clean Water Act is meant to protect, changing the law completely and removing protections from any wetland not immediately connected to a body of water.

Even Justice Brett Kavanaugh, who broke with his conservative colleagues, accused the majority of having effectively “rewritten” the Clean Water Act, which was originally passed in 1972 and updated in 1977.

“Since 1977, when Congress explicitly included ‘adjacent’ wetlands within the act’s coverage, the Army Corps has adopted a variety of interpretations of its authority over those wetlands — some more expansive and others less expansive,” Kavanaugh wrote. “But throughout those 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 man-made dike or barrier, natural river berm, beach dune, or the like.”

In the majority opinion, written by Justice Samuel Alito, the court applied a new interpretation of the word “adjacent,” removing protections for any wetlands that are not immediately adjoining lakes, streams, rivers, or oceans, which will have a profound impact on coastal communities around the country. “Wetlands are essential for protecting disadvantaged communities, which are often in low-lying areas, from flooding,” Nick Torrey, senior attorney with the Southern Environmental Law Center, said. Torrey added that wetlands are also critical to the many fishing businesses in the southeast, where he practices. “We have a saying: No wetlands, no seafood,” he said.

“The court’s approach today was to disregard several decades’ worth of precedent interpreting the Clean Water Act,” Sam Sankar, senior vice president at Earthjustice, said. For the past 40 years, the court has interpreted the word “adjacent” to mean what it does to everyone else; in this ruling, five justices said “well actually” adjacent means adjoining, so if there is anything in between a wetland and the water, that wetland doesn’t need to be protected.

It’s not a decision underpinned by science, but rather a legal invention known as the “clear statement rule,” a term the justices use when they want to assert their power to ignore Congress’s wishes and interpret the law solely as written. “The court is increasingly using the clear statement rule to narrow laws written years ago by Congresses that sought to create environmental protections like the Clean Water Act,” Sankar said. 

by Amy Westervelt, The Intercept | Read more:
Image: Sam Hall/Bloomberg via Getty Images
[ed. This is a huge deal - one that a variety of industries and special interest groups have been pushing for decades. Environmental destruction to follow (thanks again, Alito).]