Supreme Court Limits EPA's Powers to Combat Water Pollution (2023)


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Experts said the ruling would severely undermine the agency's power to protect millions of acres of wetlands under the Clean Water Act, exposing them to pollution with impunity.

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Supreme Court Limits EPA's Powers to Combat Water Pollution (1)

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.

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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."

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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.

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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.

Adam Liptak covers the Supreme Court and writesBarra Lateral,a column on legal developments. He graduated from Yale Law School and practiced law for 14 years before joining The Times in 2002. @Adamliptak Facebook


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How does the government limit the pollution of water? ›

For waters that do not meet water quality standards, states must develop Total Maximum Daily Loads (TMDL)—a pollutant budget—which EPA approves. EPA and the states then work to restrict pollution to these levels—for example, by providing incentives to landowners to reduce nonpoint source pollution.

Why did the Federal Water Pollution Control Act fail? ›

The Federal Water Pollution Control Act was not effective in preventing and abating water pollution. Because of the federal government's inability to require any direct reduction in discharges, pollution continued to increase and the quality of the nation's waters did not significantly improve.

Are Supreme Court justices skeptical of EPA's authority to protect wetlands from pollution? ›

A majority of the Supreme Court seemed skeptical of the Biden administration's defense of the Environmental Protection Agency's authority to protect wetlands from pollution under the Clean Water Act on Monday, in the first session of oral arguments in the court's new term.

Does the EPA regulate water pollution? ›

EPA enforces federal clean water and safe drinking water laws, provides support for municipal wastewater treatment plants, and takes part in pollution prevention efforts aimed at protecting watersheds and sources of drinking water.

How can the government limit pollution? ›

What policies can a government use to reduce pollution? Pollution is a negative externality – a cost to society. To reduce pollution, the government can use four main policies – tax to raise the price, subsidise alternatives, regulations to ban certain pollutants and pollution permits.

Is water controlled by the government? ›

The agencies in California who oversee and regulate some form of drinking water include: the US EPA, the California Sate Water Resources Control Board-Division of Drinking Water, California Department of Public Health, and local County Environmental Health Departments.

Why are people against the Clean Water Act? ›

Despite this, the Clean Water Act has been controversial, for two reasons. First, there is no clear evidence that the Clean Water Act has decreased pollution, or even whether water pollution has fallen(Adler et al. 1993). Second, some argue that the Clean Water Act's costs have exceeded its benefits.

What is Biden doing about water pollution? ›

President Biden has secured historic resources to address emerging containments like PFAS. His Bipartisan Infrastructure Law invests $9 billion over five years to help communities that are on the frontlines of PFAS and other contamination reduce levels in drinking water.

How many times has the Clean Water Act been violated? ›

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves.

What is the Supreme Court Clean Water Act 401? ›

Under federal Clean Water Act (CWA) section 401 every applicant for a federal permit or license for any activity which may result in a discharge to a water body must obtain State Water Quality Certification (Certification) that the proposed activity will comply with state water quality standards.

Is the Clean Water Act unconstitutional? ›

Like every law of the land, the Clean Water Act (CWA) finds its legal basis in the United States Constitution. The Commerce Clause, Article I, Section 8 of the Constitution grants Congress the power to regulate intra and interstate commerce.

Who has sued the EPA? ›

Among the groups suing the EPA is the San Antonio Bay Estuarine Waterkeeper, an environmental advocacy organization headed by Diane Wilson, a fourth-generation retired shrimper and longtime environmental activist who reached a $50 million settlement with Formosa Plastics Corp.

Does the EPA have the power to regulate? ›

EPA is called a regulatory agency because Congress authorizes us to write regulations that explain the critical details necessary to implement environmental laws. In addition, a number of Presidential Executive Orders (EOs) play a central role in our activities.

What has the EPA done to reduce water pollution? ›

"Clean Water Act" became the Act's common name with amendments in 1972. Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. EPA has also developed national water quality criteria recommendations for pollutants in surface waters.

Does the EPA regulate your type of pollution if so how? ›

Under the Clean Air Act (CAA), EPA sets limits on certain air pollutants, including setting limits on how much can be in the air anywhere in the United States. The Clean Air Act also gives EPA the authority to limit emissions of air pollutants coming from sources like chemical plants, utilities, and steel mills.

How have laws helped to reduce water pollution? ›

The 1972 amendments: Established the basic structure for regulating pollutant discharges into the waters of the United States. Gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry.

Does the US Constitution mention cleaning up pollution? ›

“The natural resources of the nation are the heritage of present and future generations. The right of each person to clean and healthful air and water, and to the protection of the other natural resources of the nation, shall not be infringed upon by any person.

What agency works to limit or eliminate pollution? ›

EPA regulates emissions of air pollution from mobile and stationary sources under the Clean Air Act (CAA). For more on EPA's enforcement process, go to Basics on enforcement.

How does the EPA regulate water quality? ›

EPA sets legal limits on over 90 contaminants in drinking water. The legal limit for a contaminant reflects the level that protects human health and that water systems can achieve using the best available technology. EPA rules also set water-testing schedules and methods that water systems must follow.

What are the 2 laws that protect water in America? ›

Drinking Water Standards and Regulations
  • The Safe Drinking Water Act (SDWA) was passed by Congress in 1974, with amendments added in 1986 and 1996, to protect our drinking water. ...
  • National Primary Drinking Water Regulations (NPDWR) are standards and treatment techniques that public water systems must follow.

Has the government done anything for water crisis? ›

Governor Newsom announces $5.1 billion drought and water infrastructure package at San Luis Reservoir. The Governor's $5.1 billion proposed investment, over four years, aligns with his July 2020 Water Resilience Portfolio, a roadmap to water security for all Californians in the face of climate change.

Do US citizens have a right to clean water? ›

The human right to water is recognized in international law and some U.S. state and local laws. Although the U.S. federal government does not recognize this right, some provisions of federal laws promote particular aspects of the right to water.

What is the biggest problem with the Clean Water Act? ›

Shortcomings of the Clean Water Act and its Implementation

Beyond its language, the Clean Water Act fails to regulate “nonpoint source pollution,” or pollution that doesn't come from a discrete location, such as agricultural runoff.

Is Clean Water Act a federal law? ›

The Clean Water Act (CWA) is the primary Federal statute regulating the protection of the nation's water.

Who is making water pollution worse? ›

Industrial Waste

Industries and industrial sites across the world are a major contributor to water pollution.

Is water pollution going to get better? ›

Water pollution levels have generally improved compared to 50 years ago. Some trends are depicted in the images below, from a recent academic analysis. The Clean Water Act has driven pollution controls since 1972.

What is the water scandal in USA? ›

The Flint water crisis is a public health crisis that started in 2014 after the drinking water for the city of Flint, Michigan was contaminated with lead and Legionella bacteria.

How many U.S. citizens don't have access to clean water? ›

More than 46 million people in the U.S. live with water insecurity—either no running water or water that may be unsafe to drink.

How safe are U.S. rivers 50 years after the Clean Water Act? ›

Fifty Years After the Clean Water Act, Half of U.S. Waters Are Unsafe for Humans and Fish. A study of U.S. waterways shows that around half of lakes, rivers, and streams in the U.S. are too toxic to swim or fish in.

Did Congress pass the Clean Water Act? ›

Fifty years ago, the Congress passed the Clean Water Act of 1972, revolutionizing America's responsibility to protect and restore the vital waterways that sustain our communities, our economy, and our ecosystems.

What is Section 402 of the Federal Clean Water Act? ›

Section 402 of the Clean Water Act requires that a discharge of any pollutant or combination of pollutants to surface waters that are deemed waters of the United States be regulated by a National Pollutant Discharge Elimination System (NPDES) permit.

Is the Clean Water Act still active? ›

Congress passed the Clean Water Act in 1972 to protect all "waters of the United States.” Fifty years later, the law is still the main way we are able to safeguard our nation's waters from pollution and destruction, protecting public health and wildlife habitat.

What is Section 319 of the Federal Clean Water Act? ›

The 1987 amendments to the Clean Water Act (CWA) established the Section 319 Nonpoint Source Management Program Section 319 addresses the need for greater federal leadership to help focus state and local nonpoint source efforts.

What does the Clean Water Act make illegal? ›

The CWA made it unlawful for any person to discharge any pollutant from a point source into waters of the United States, unless a NPDES permit was obtained under its provisions.

What was the verdict in Sackett v the EPA? ›

September 22, 2021: Michael and Chantell Sackett appealed to the U.S. Supreme Court. August 16, 2021: The United States Court of Appeals for the Ninth Circuit ruled in favor of the EPA, holding that the agency's jurisdiction under the Clean Water Act extends to the Sackett's property.

What is the biggest EPA violations? ›

On October 22, 1998, the Department of Justice and the Environmental Protection Agency announced an $83.4 million total penalty against diesel manufacturers, the largest civil penalty ever for violation of environmental law.

Does the president have control over the EPA? ›

The agency is led by its administrator, who is appointed by the president and approved by the Senate. The current administrator is Michael S. Regan. The EPA is not a Cabinet department, but the administrator is normally given cabinet rank.

Does the government control the EPA? ›

The Environmental Protection Agency (EPA) is a federal government agency, created by the Nixon Administration, to protect human health and the environment.

What has the government done to reduce ocean pollution? ›

The State of California has become a leader in preventing ocean litter by passing a ban on single-use plastic bags; banning microplastics in wash-off products, like face scrubs and toothpaste; and enacting among the most comprehensive plastic extended producer responsibility requirements in the nation.

Why does the government control water supply? ›

For example, the goal may be to protect water from nutrients and other runoff. Or, goals may be to protect aesthetics of a resource, or to protect natural habitat.

How might government water pollution regulations serve the public interest? ›

How might government water-pollution regulations serve the public interest? By ensuring that water does not contain toxins that could endanger people. The ______ clauses of the constitution support the principle that government can take private property only to meet a public need.

Who can stop ocean pollution? ›

The Ocean Cleanup is a non-profit organization developing and scaling technologies to rid the oceans of plastic.

What is the United States policy on ocean pollution? ›

The Marine Protection, Research, and Sanctuaries Act (MPRSA), also known as the Ocean Dumping Act, prohibits dumping into the ocean material that would unreasonably degrade or endanger human health or the marine environment. Ocean dumping cannot occur unless a permit is issued under the MPRSA.

Who is responsible for protecting the ocean? ›

The UN Environment Programme (UNEP), particularly through its Regional Seas Programme, acts to protect oceans and seas and promote the sustainable use of marine resources. The Regional Seas Conventions and Action Plans is the world's only legal framework for protecting the oceans and seas at the regional level.

What part of the government is responsible for water? ›

EPA enforces requirements under the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA). For more on EPA's enforcement process, go to basic information on enforcement.

How are the EPA and state governments involved in enforcement of the Clean Water Act? ›

EPA works with its federal, state and tribal regulatory partners to monitor and ensure compliance with clean water laws and regulations in order to protect human health and the environment. The Clean Water Act is the primary federal law governing water pollution.

Has the Clean Water Act been successful? ›

The Clean Water Act has been successful at reducing pollution that enters our rivers and lakes from 'point sources. ' These are single, identifiable sources of pollution like wastewater treatment plants and factories. However, 'nonpoint source' pollution is still a significant problem for clean water.

Why did people oppose the Clean Water Act? ›

In particular, they fear the Clean Water Rule could expand federal regulations that impact their private property rights. However, regulatory agencies and the regulated community need to know the limits of the Clean Water Act's reach so they can take appropriate measures to protect water resources.


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