The Supreme Court kicks off its 2022 term on Monday with the highly anticipated argument in Sackett v. Environmental Protection Agency (EPA). Petitioners are seeking another blockbuster ruling ala West Virginia v. EPA that hamstrung EPA’s authority to reduce greenhouse (GHG) emissions from coal-fired power plants. The court’s embrace of the ill-defined “major questions doctrine” as the rationale for refusing to give any deference to EPA’s admittedly “plausible” interpretation of section 111 d of the Clean Air Act has raised the specter of the court’s conservative majority taking a sharp axe to any number of environmental regulations.
This time the Clean Water Act (CWA) is on the chopping block. As framed by the court, the question presented in Sackett is whether the 9th Circuit “set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” Although the major questions doctrine is not squarely raised the antipathy toward agency deference that underlies it is likely to come into play.
The 9th Circuit, like all the other circuits that have considered the question, looked to Justice Anthony Kennedy’s significant nexus test in his concurring opinion in Rapanos v. U.S. to uphold the trial court’s determination that the wetland on the Sackett property was jurisdictional. The court relied on several key facts in ruling that the wetland met the “adjacency” requirement of the EPA and Corps’ 2008 rules that were in effect at the time the compliance order was issued to the Sacketts.
The wetland is within 300 feet of Priest Lake a traditionally navigable water located in Northern Idaho and prized for its exceptional clarity. The wetland is also within 30 feet of an unnamed but “relatively permanent” tributary of Kalispell Creek that flows into the lake. The wetland was originally part of a much larger wetland complex providing important ecological benefits to Priest Lake. The court further ruled that the existence of a road separating the wetland from the creek did not defeat jurisdiction under the agencies’ 2008 rule.
Petitioners want the court to reject the Kennedy test and adopt a two-part test grounded in the late Justice Antonin Scalia’s plurality opinion in Rapanos as the governing standard for determining CWA jurisdiction over wetlands. Scalia rejected the regulatory definition of “adjacency” and instead concluded that, under the statute, federal jurisdiction extends only to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. At another point, Scalia referred to a “continuous physical connection.” Petitioners contend that Scalia meant a “continuous surface water connection” and that the existence of the road or any other artificial barrier defeats CWA jurisdiction.
The Navigable Waters Protection Rule (NWPR) promulgated by the previous administration, which has since been vacated by two lower courts, largely adopted petitioners test. According to preliminary data compiled by the United States Geological Survey the NWPR could mean the loss of federal protection for over half of the nation’s remaining wetlands. In a more recent survey of 55,519 water bodies the Corps determined that 40,000 (70 percent) no longer qualify for federal protection under the Clean Water Act.
States are not likely to fill the gap. Some 28 states have laws on the books mandating that state law be no stricter than federal law. Only 17 states have laws regulating activities that impact wetlands and they vary widely in scope and effect. Following publication of the NWPR, Indiana and Ohio actually reduced protection for their waters.
As with West Virginia v. EPA, the Supreme Court has once again inserted itself into an ongoing rulemaking in the absence of any imminent threat of injury to petitioners. EPA has long since withdrawn the compliance order against the Sacketts and assured the court it has no intention of reinitiating enforcement. However, as the 9th Circuit found, the case is not moot because neither EPA nor the Corps has formally disavowed jurisdiction, thus leaving a Damoclean threat hanging over their heads.
Nevertheless, a more cautious Supreme Court might have stayed its hand to give the agencies the opportunity to finalize the “Revised Definition of ‘Waters of the United States’” rule, which purports to restore the regulations in place prior to the 2015 Clean Water Rule, updated to be consistent with relevant Supreme Court decisions in SWANCC v. United States Army Corps of Engineers and Rapanos. Reportedly, this rule is awaiting clearance from the White House before publication in the Federal Register.
The agencies also intend to consider further refinements in a second rule that would consider additional stakeholder engagement and implementation considerations, scientific developments and environmental justice values. All of which would lead to a more developed record and potentially changes in the “waters of the United States” (WOTUS) definition that might assuage concerns that have been expressed by Chief Justice John Roberts and others on the court.
Now that the fat is in the fire, the question is: What will the court do and how far will it go? I disagree with those who think this will be a definitive ruling that settles the WOTUS issue once and for all. Assuming the court rejects Kennedy’s significant nexus test and adopts Scalia’s “continuous surface connection” to a “relatively permanent” water body test, the most likely outcome will be a remand to the trial court for further proceedings. The court could also rule that the existence of a road or other artificial barrier categorically defeats jurisdiction but that would be reaching beyond the facts in the record and seems unlikely.
In short, Sackett is likely to satisfy no one. Congress is the only body that can settle the WOTUS question once and for all. And after 50 years in this business, I’m not holding my breath on that happening anytime soon.
Patrick Parenteau is a professor of environmental law at Vermont Law School.