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Supreme Court this Thursdaylimited the powers of the Environmental Protection Agencymillions of acres of wetlands to monitor, another setback to the agency's ability to tackle pollution.
Judge Samuel A. Alito Jr., writing for five judges, said the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have "a continuous surface connection" with those bodies. water bodies.
The decision was a second major blow to the authority of the E.P.A. and administrative power in general. court last yearlimited the EPA's powers to fight climate changein accordance with the Clean Air Act.
Environmental law experts said the decision would expose many wetlands to pollution with impunity and severely undermine the EPA's authority to protect them under the Clean Water Act.
"This is a truly catastrophic outcome for wetlands that have become critical to biodiversity protection and flood control," said Patrick Parenteau, professor at the Vermont School of Law.
Kevin Minoli, who serves as the leader of the E.P.A. Clinton's Trump administration attorney, who oversees enforcement of the Clean Water Act regulations, said the decision would have huge practical implications and estimated it would affect more than half of the nation's wetlands.
"If you are in an area with a lot of wetlands, but those wetlands are not directly connected to a continuously flowing body of water, then those wetlands are no longer protected under the Clean Water Act," he said.
The decision was nominally unanimous, with all judges agreeing that the landlords who filed the suit should not have been under the agency's supervision, as the swamps on their properties were not regulated in any way. However, there has been much disagreement over a new test that the majority has introduced to determine which wetlands fall under the law.
Judge Brett M. Kavanaugh, who was joined by the three liberal justices in a unanimous opinion, said the decision would affect the federal government's ability to deal with pollution and flooding.
“By limiting the scope of the Wetlands Act to contiguous wetlands only,” he wrote, “the new court test will ensure that some long-regulated contiguous wetlands are no longer covered by the Clean Water Act, with significant implications for the public health". Water quality and flooding.” Control in the United States.
In a second consensus opinion, Judge Elena Kagan criticized the majority interpretation of the law, citing the court's decision in June to limit the EPA's ability to limit plant emissions.
“There,” she wrote, “the non-textualism of the majority blocked the E.P.A.” We want to fight climate change by reducing emissions from power plants in the most effective way. Here, this method prevents the E.P.A. keep our country's waters clean by regulating adjacent wetlands. The vice is the same in both cases: the appointment of the court as a national decision-maker in matters of environmental policy.”
The ruling is also another example of the court's skepticism about administrative authority, said Jonathan H. Adler, a law professor at Case Western Reserve University. "The current court," he said, "is clearly not willing to delegate the scope of its own powers to any authority."
Damien Schiff, a lawyer for the Pacific Legal Foundation representing the owners in the case, praised the Supreme Court's decision. "The courts now have a clear measure of fairness and consistency from federal regulators," he said in a statement. "Today's verdict is a major victory for property rights and the constitutional separation of powers."
President Biden expressed dismay at the verdict and said his administration will consider next steps. "This puts our nation's wetlands - and our associated rivers, streams, lakes and ponds - at risk of pollution and destruction, and endangers the clean water sources that millions of American families, farmers and businesses depend on," he said. declaration.
The case, Sackett v. Environmental Protection Agency #21-454 involved an Idaho couple, Michael and Chantell Sackett, who wanted to build a home on land near Priest Lake that an appeals court described as a "flooded residential lot" under the coup.
In 2007, after the couple began preparing the site for construction, piling up sand, gravel and a landfill, authorities ordered a halt to the work and the site restored to its original condition, threatening them with substantial fines. Instead, the couple sued the agency, and a dispute over whether that lawsuit was premature made its way to the Supreme Court in an earlier appeal. In 2012, judgesdecided that the proceedings could proceed.
Ema consensus of opinionJudge Alito said at the time that the law gave the agency too much power.
"The scope of the Clean Water Act is notoriously unclear," he wrote. “Any piece of land that is wet for at least part of the year is E.P.A. endangered. Wetland workers fall under the law, and if homeowners start building a house on property that the agency believes has the necessary moisture, homeowners will be at the mercy of the table, the federal government said.
On Thursday, all nine judges agreed that the agency had gone too far in regulating the Sacketts' property.
"I concur with the court's final determination," wrote Judge Kavanaugh, "that the swamps on the Sacketts' property are not covered by law and therefore are not subject to any permit requirements."
This suggests that the court could have taken a much more qualified decision, said Professor Parenteau.
"They could have made a firm decision based on the facts of the Sackett case and said that in this case a wetland that small and not connected to the lake should not be subject to federal control."
Instead, he said, "the majority has developed a US-wide policy based on this specific set of facts about this property in northern Idaho."
The two sides disagreed Thursday mainly over how the Clean Water Act covers wetlands "adjacent" to what the act describes as "United States waters."
This second term, wrote Judge Alito, was "definitely not well-known concept art" and a "frustrating design choice". He said it included "streams, oceans, rivers and lakes".
But what does it mean that wetlands “are adjacent” to such bodies of water? Judge Alito wrote that the term can mean "adjacent" or "next". In terms of the Clean Water Act, he wrote: “Wetlands separated from traditional navigable waters cannot be considered part of these waters, even if they are nearby.”
The four minority judges disagreed.
"'Contiguous' and 'adjacent' have different meanings," wrote Judge Kavanaugh, adding that it would include wetlands "separated from an internal body of water only by an artificial embankment or barrier, natural river embankment, beach dune, etc. " like this."
He added: “There is a good reason why Congress included not just contiguous swamps, but contiguous swamps as well. Due to the movement of water between adjacent wetlands and other bodies of water, pollutants in wetlands often seep into adjacent rivers, lakes and other bodies of water.”
Judge Kagan gave an example of the difference between contiguous and adjacent.
"In plain language," she wrote, "one thing borders on another, not just by touch but by proximity." The fence separates the two."
Judge Alito responded, citing an earlier decision, that Congress "must use extremely clear language if it is to significantly alter the balance between federal and state power and government power over private property."
Judge Kagan wrote that last year's climate change ruling used similar logic, invoking "another simple rule (the so-called Great Missions doctrine) to shorten another clearly broader term."
She added: "Today's sensible pop-up rule can only be explained as a knee-jerk reaction to Congress passing an ambitious environmental regulation plan."
Lower courts ruled that the Sacketts' property was a swamp that the agency could regulate and concluded it was eligible by a 2006 Supreme Court ruling.Rapans x United States, with concurrent tests to answer this question.
Judge Antonin Scalia, who died in 2016, wrote to four judges in the Rapanos decision that only wetlands with "a continuous surface connection" with "relatively permanent, stagnant or flowing bodies of water" are eligible.
Judge Anthony M. Kennedy, who retired in 2018, said in a unanimous opinion that the law requires only a "substantial relationship" between wetlands and the bodies of water in question.
Thursday's decision rejected that view. "It is surprising," said Professor Adler, "that no court has attempted to uphold the 'meaningful consistency' test formulated by Justice Kennedy in Rapanos."
Coral Davenport contributed coverage.
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Shortcomings of the Clean Water Act and its Implementation
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