By Jonathan H. Adler, The Volokh Conspiracy
Today, in Sackett v. Environmental Protection Agency, the Supreme Court adopted a narrowing interpretation of the scope of federal regulatory authority under the Clean Water Act (CWA). The justices were unanimous in rejecting the U.S. Court of Appeals for the Ninth Circuit's expansive interpretation of the EPA's regulatory authority and Justice Kennedy's "significant nexus" test for CWA jurisdiction. But the justices split 5-4 on how to interpret the CWA and the extent to which Congress authorized the regulation of wetlands as part of "the waters of the United States."
Justice Alito wrote the opinion for the Court, joined by the Chief Justice and Justices Thomas, Gorsuch, and Barrett. Justice Thomas concurred, joined by Justice Gorsuch. Justice Kavanaugh concurred in the judgment (in what is effectively the principal dissent), joined by Justices Sotomayor, Kagan, and Jackson, and Justice Kagan wrote a separate opinion concurring in the judgment joined by Justices Sotomayor and Jackson.
Justice Alito's opinion for the Court embraces Justice Scalia's plurality opinion from Rapanos v. United States. Writes Justice Alito:
the Act applies to "navigable waters," which had a well-established meaning at the time of the CWA's enactment. But the CWA complicates matters by proceeding to define "navigable waters" as "the waters of the United States,"§1362(7), which was decidedly not a well-known term of art.This frustrating drafting choice has led to decades of litigation, but we must try to make sense of the terms Congress chose to adopt. And for the reasons explained below, we conclude that the Rapanos plurality was correct: the CWA's use of "waters" encompasses "only those relatively permanent, standing or continuously flowing bodies of water' forming geographic[al] features' that are described in ordinary parlance as 'streams, oceans, rivers, and lakes.'"
According to Justice Alito, this means that wetlands that have a continuous surface water connection or are directly adjoining jurisdictional waters may be regulated as part of the waters of the United States, those wetlands that are physically "separate" from such waters may not be, even if they would satisfy a more capacious definition of "adjacent." He writes:
In sum, we hold that the CWA extends to only those wetlands that are "as a practical matter indistinguishable from waters of the United States." Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish "first, that the adjacent [body of water constitutes] . . . 'water[s] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." Id., at 742.
Justice Thomas concurred separately to suggest that a fuller examination of the scope of federal regulatory authority might require more dramatic limits on the regulatory authority of the EPA (and Army Corps of Engineers). Joined by Justice Gorsuch he writes:
like the Rapanos plurality before it, the Court focuses only on the term "waters"; it does not determine the extent to which the CWA's other jurisdictional terms—"navigable" and "of the United States"—limit the reach of the statute. Ante, at 14–18; Rapanos, 547 U. S., at 731 (plurality opinion). I write separately to pick up where the court leaves off.
He then goes to explain how federal regulatory authority over navigable waters was traditionally constrained by the scope of the federal Commerce Power, and should be understood in the terms embraced by the Supreme Court in The Daniel Ball (1871).
Read the rest here.
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