A recent US Supreme Court decision will dramatically reduce the amount of wetlands that are subject to federal regulation and potentially cause substantial environmental harm, according to Professor Nina Mendelson.
“Wetlands serve critical environmental functions,” explained Mendelson, the Joseph L. Sax Collegiate Professor of Law. “Among other things, they can filter out metals, nutrients, and other contaminants and thereby protect nearby waterways. They’re important for flood control, a function that’s increasingly important as climate change causes more extreme weather events. And they can serve important ecological functions, providing places for fish, waterfowl, and reptiles to live, feed, and breed.”
Although the Court ruled unanimously in Sackett v. Environmental Protection Agency that the particular wetland in question should not fall under federal regulation, the Court also established a new standard—on a 5-4 vote—that the EPA may only regulate wetlands that have a continuous surface connection to bodies of water such as lakes and streams. Previously, nearby wetlands also fell under federal regulation.
“Every presidential administration that has regulated since the Clean Water Act was passed in 1972 has agreed that protecting wetlands is a critical part of protecting our nation’s waters,” Mendelson said. Now, a much smaller number of wetlands—possibly millions of acres less—will get that protection.
Mendelson recently answered five questions about the issue:
1. What did the Supreme Court rule in the Sackett case?
The Clean Water Act protects “waters of the United States.” The Court addressed whether that language protects a particular category of wetlands—those that are near, but not actually adjoining, a waterbody. For a five-member majority of the Court, including himself, Justice Alito wrote that only wetlands with “continuous surface connection” to a waterway could be considered federally protected “waters of the United States.” This majority concluded that wetlands that neighbored waterways, but lacked that continuous surface connection to them, were not federally protected.
Four members of the Court disagreed, reasoning that the Clean Water Act did protect nearby wetlands, particularly those separated only by a berm, dune, or other barrier. None of the nine justices would have concluded, however, that the wetlands on the Sacketts’ property were federally protected.
2. What are the major implications of the Sackett decision?
Wetlands that are near waterbodies, but lack a continuous surface connection to them, may not be federally protected even if the wetlands could significantly affect the quality and environmental functions of the waterbodies, including through subsurface connections. As Justice Kavanaugh pointed out in his concurrence, eight presidential administrations, including the Trump administration’s EPA and Army Corps of Engineers, had agreed that wetlands separated by dunes, berms, or other barriers from waterways were federally protected. The Sackett ruling denied even those wetlands federal protection.
The Court also leaves the legal status of many wetlands in limbo. The Court acknowledged that a wetland could still be federally protected even if there was a temporary loss of a continuous surface connection to a waterway, as with a low tide or a “dry spell,” but it remains unclear just how much surface connection is required for a wetland to qualify for federally protected status—whether weeks or months per year.
3. Reaction to the decision is strong and divided, with some seeing this ruling as gutting the EPA’s ability to do its job, while others see an important victory for the rights of property owners. How would you frame it?
It is both. Scientists are still assessing just how many wetlands will lose protection under the Sackett ruling and exactly how that is likely to impact our waterways, but this unquestionably harms environmental protection.
It is also a victory for property owners, who are now freer to take action on their property that may harm shared water resources, including by filling important wetlands and thereby putting our shared water resources at greater risk. In his majority opinion, Justice Alito expressed particular concern for private property owners—even though under centuries of American law, private property owners have never been wholly free to take action that injures their neighbors or harms public resources like the air or water.
4. Considering this decision and last year’s ruling that limited the EPA’s ability to regulate emissions from power plants, Justice Kagan wrote an opinion arguing that the Court has appointed itself as “the national decision maker on environmental policy.” Would you agree? Is that necessarily a bad thing?
Justice Kagan has a point, sadly. Although the Court claims that textual details of statutes are of enormous importance, in both West Virginia vs. EPA and Sackett vs. EPA, the Court read statutory text very narrowly, sometimes giving it little or no effect at all. This undercut both the Clean Air Act and the Clean Water Act and in the future will make it far more difficult for Congress to pass legislation that protects our shared environmental resources.
This is risky, because the Court lacks expertise in environmental protection and in understanding—or designing—our most effective and efficient approaches to regulation. In addition, the Court, unlike Congress or federal executive branch agencies who answer to the president, is not accountable to voters for the policies it has effectively made in these decisions.
5. Are there legislative approaches that could overturn the effects of this decision, and if so, are they likely to be pursued and enacted?
Congress could amend the Clean Water Act to protect a greater array of wetlands, but in general, commentators think Congress is presently unlikely to enact pro-environment regulatory legislation. The State of Michigan is also free to enact legislation that would protect more wetlands and protect them more stringently than the federal law.
