The Supreme Court on Thursday restricted the Environmental Protection Agency’s authority to police water pollution, ruling that the Clean Water Act does not allow the agency to regulate discharges into some wetlands near bodies of water. The court held that law covers only wetlands “with a continuous surface connection” to those waters, Justice Samuel A. Alito Jr. wrote for five justices. The decision was unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight. But there was sharp disagreement about the majority’s reasoning. Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the E.P.A.’s ability to combat pollution. “By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States”. The decision followed a ruling last year that limited the E.P.A.’s power to address climate change under the Clean Air Act.
“There,” Justice Elena Kagan wrote in a second concurring opinion, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.” The case, Sackett v. Environmental Protection Agency, No. 21-454, concerned an Idaho couple, Michael and Chantell Sackett, who sought to build a house on what an appeals court called “a soggy residential lot” near Priest Lake, in the state’s panhandle. After the couple started preparing the property for construction in 2007 by adding sand gravel and fill, the agency ordered them to stop and return the property to its original state, threatening them with substantial fines. The couple instead sued the agency, and a dispute about whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the suit could proceed. And here we are now.
