A ruling by the Supreme Court of the United States greatly curtailed the Environmental Protection Agency’s ability to police water pollution.
In a 5-4 decision, the Supreme Court of the United States greatly curtailed the EPA’s ability to police pollution discharged into certain wetlands. At its heart, the case pitted property rights of individuals against environmental concerns. The ruling outlined that “wetlands can only be regulated under the Clean Water Act if they have a ‘continuous surface connection’ to larger, regulated bodies of water.” (AP) This upends the “significant nexus” standard outlined by now-former Justice Kennedy 17 years ago.
The central matter in the case before the Court was regarding one specific landowner and the authority of the US EPA. However, while the decision on that matter was unanimous (in reining in the EPA’s authority), the legal reasoning behind that conclusion seemed to separate the Court, with a total of four separate opinions released detailing the various Justices’ logic behind their decision.
For a number of years, an array of proposed federal regulations, unsurprisingly differing in tenor by differing political administrations, have sought to clarify the breadth of the term “Water of the United States” (aka WOTUS) used to define the sweep of the federal Clean Water Act. Through multiple rounds of policy debates over these changes, local governments have been among many actors concerned that an overbroad definition of this term could grant federal oversight upon fleeting, non-navigable waterways all the way down to agricultural irrigation ditches. This case does not necessarily resolve all the WOTUS issues, but it does suggest that the broadest implementation of that term (including rules currently proposed but unfinished by the US EPA under the Biden Administration) may not withstand judicial scrutiny.
Justice Kavanaugh broke with the other conservatives on the court on the central decision, and penned a concurring opinion on the central matter of the case, but with substantial disagreements on their overall policy findings, joining philosophically with more liberal justices (who did so in their own concurring opinions) raising concerns that they had gone too far. Justice Kavanaugh noted,
…new and overly narrow test may leave long-regulated and long-accepted-to-be regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.
…federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries.”
Advocates who decried the decision laid two paths to regaining protections for wetlands, quick actions by Congress and state legislatures.
Read the full story as covered by the Associated Press.
