Our Critical Wetlands Are Endangered Before SCOTUS Today

Photo Courtesy of Mountain States Legal Foundation

In 2004, Michael and Chantall Sackett bought an empty lot 300 feet from Priest Lake in Idaho and wanted to build a home on it. But the lot was located on wetlands—the soggy yet critical feeder areas that filter water as it makes its way into lakes. rivers and the ocean. As a consequence, the Sacketts’ lot was protected by the Clean Water Act. In order to fill the lot with sand and gravel, as the Sacketts wanted to do, they’d have to obtain a permit from the Environmental Protection Agency. Instead, they ignored this requirement and started work on the fill.

When the EPA discovered what the Sacketts were doing, it ordered them to cease work and restore the property or face hefty fines. The Priest Lake wetlands fall under the EPA’s current authority under the Act, which prevents the “discharge of pollutants” into the nation’s “navigable waters” including, under the prevailing interpretation, the swamps, marshes and bogs adjacent to them.

The Sacketts refused to comply with the order and instead sued. They are hoping that a more conservative Supreme Court, which is hearing the case today as the first in its new term, would be willing to gut the Act. 

They likely will get their wish. 

The technical issue the justices will determine is whether “navigable waters” includes adjacent wetlands such as the Sacketts’ lot. The leading case on this is a split decision called Rapanos v. United States decided 16 years ago. In that case, four conservative justices, led by the late Justice Antonin Scalia, wanted to define “navigable waters” as only including wetlands that have a “continuous surface water connection to regulated waters.” On the other side, the four liberal justices, led by Justice John Paul Stevens, argued that when a federal law is ambiguous, courts should defer to the executive agency in charge of implementing the law and shouldn’t get involved.

With the conservatives and liberals evenly split, Justice Anthony Kennedy, now retired from the Court, issued the controlling opinion. He set out a middle ground that stated wetlands are subject to the Clean Water Act if they “significantly affect the chemical, physical, and biological integrity of the covered waters.” This was a more holistic approach, one that actually tracks the science of how wetlands work, and it has been the law ever since.

Sackett v. EPA almost certainly will change that, barring a surprise, now that there is a solid conservative majority of six justices. The question, similar to when the Court faced the abortion question, really is how much of the existing law will be gutted.

The Sacketts and their conservative allies want the Court to rule that only navigable waters themselves are covered by the Act. That extreme position, if adopted, would mean streams, ponds, and other smaller bodies of water wouldn’t be subject to regulation at all because they aren’t “navigable.” This would be an unmitigated disaster for the environment because polluters would be free, barring any local or state laws forbidding it, to contaminate any of the smaller waterways that feed into our major lakes and rivers, and to do so without legal consequence.

A more likely but still very bad outcome is that the Scalia rule from Rapanos, which requires the property exhibit a “continuous surface water connection” to navigable waters, will become law. This is simply bad science and an arbitrary delineation. Water very often flows beneath the ground surface, especially from wetlands. The National Association of Wetland Managers, in their amicus brief to the Court, estimates that the Scalia rule would put in jeopardy some 51 percent or more of U.S. wetlands and 60 percent of the nation’s stream length. In some regions, like the West, 80 to 90 percent of waters only flow seasonally and are therefore also not continuously connected.

Zooming out from the damage this decision could do to our nation’s waterways, at further issue is the question of which branch of government ought to be making these kinds of decisions in the first instance. The courts are ill-suited to make expert determinations about things like the flow of water and the potential for damage from destruction of wetlands. That’s what experts in the EPA are hired to do, liberals argue. The stripping of the EPA’s general power to deploy science and expertise to formulate and enforce regulations is part of the conservative majority’s broader mission to diminish the regulatory role of agencies everywhere. They won’t stop at the EPA.

Zooming out even further, conservatives see this case as really about the rights of private individuals to use their personal property in any way they see fit, even if that use carries with it significant external effects, such as destruction of a filtering and flood control zone. A central tension between conservatives and liberals today is how far your “personal” rights (e.g. your bigoted religious beliefs, how you pollute the environment, the way you might infect others with a deadly virus) ought to extend. Conservatives on the Court have been steadily advancing a “hands off our private property” world vision on the environment, even as they refuse to recognize a “hands off our bodies” one on abortion.

Sackett will be the first among many Supreme Court cases that are certain to infuriate progressives while leading right-wing extremists to cheer. The Court has lined up several cases this term that could up-end long standing precedent in environmental law, voting rights and the conduct of our democratic elections, as well as further erode civil liberties, particularly for the LGBTQ+ community. If, as expected, the Clean Water Act gets gutted by Sackett, along with the Voting Rights Act in a case to be heard later this month, only a Democratic majority in both chambers of Congress in 2023, along with a senate willing to abandon the filibuster rule, could possibly restore the prior law. In the meantime, our planet and our drinking water will begin to suffer irreparable harm.