On October 3, the Supreme Court began hearing arguments in one of the most closely watched cases of the year, a 15-year-old legal battle known as Sackett v. Environmental Protection Agency. “This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett Kavanaugh said during the nearly two-hour argument on the opening day of the court’s term.
In a 2007 property dispute, Idaho landowners Michael and Chantell Sackett were told by the Environmental Protection Agency that they needed a federal permit to build a home on land they owned because it contained wetlands regulated under the Clean Water Act. They faced potentially crippling fines and criminal charges and have been disputing the mandate ever since.
One of the questions about the case is whether the court will take the opportunity to revise or overturn its 2006 decision in Rapanos v. United States, another contentious case involving the Clean Water Act. In that decision, Justice Anthony Kennedy broke a 4-4 tie among his fellow justices and came up with the controversial “significant nexus” test for whether or not a wetland is “adjacent” to a federally regulated waterway.
Some legal scholars have argued that the term “significant nexus” was vague and impossible to define and thus bad law. Does the “significant nexus” mean only a surface connection between a wetland and a regulated waterway—as Justice Antonin Scalia argued in his widely cited dissent from Rapanos? Or does a subterranean connection count? How far does wetland water have to travel in the groundwater, and around what obstacles, to have a “significant nexus”? In 2012, the Supreme Court ruled that the Sacketts could seek judicial review of their claims.
Rapanos critics—including industry and farm groups — argued that Rapanos opened the door for the EPA to unreasonably expand its powers of regulation and control of wetlands beyond what Congress intended in the Clean Water Act. The retired Kennedy has been watching the Sackett proceedings from the gallery, and legal blogs are tracking every argument and counter argument.
The court’s lack of clarity in Rapanos left the way open for the Sackett case to drag on for 15 years. It also allowed a back-and-forth tug of war between Democratic and Republican administrations over water rules and what counts as a regulated “water of the U.S.” The Trump administration’s water rule relied on the clearer but more restricted Scalia ruling, called the “plurality opinion” by some legal writers, while Democratic administrations wanted the most expansive interpretation of EPA’s powers. Observers on both sides of the case agreed that the uncertainty has not been good for anyone.
The Pacific Legal Foundation, whose attorneys are representing the Sacketts before the court, reports that in the first day of argument, the EPA was unable to answer Justice Gorsuch’s probing questions about at what point a “significant nexus” ends. Three thousand feet? Three miles? Gorsuch reportedly said, “So if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”
The Biden administration is working on yet another water rule change, but only the Court has an opportunity to replace the flawed “significant nexus” rule with a clear, unambiguous ruling that will support the true intent of the CWA and protect clean water while setting proper—and clearly understandable—limits to federal overreach.