U.S. Supreme Court Further Erodes EPA’s PowerU.S.

Sackett Property at Priest Lake Idaho

WASHINGTON—The Supreme Court limited the Environmental ProtectionAgency’s authority over wetlands, the latest in a series of decisions reining in federal agencies.

In a unanimous decision on Thursday, the court adopted a narrow view of what constitutes a wetland falling under the EPA’s jurisdiction under the Clean Water Act, a landmark 1972 law addressing water pollution. The court said the EPA can only assert jurisdiction over wetlands that have continuous surface connection to navigable waters, rejecting a more expansive view proposed by the EPA.

While the justices agreed in ruling against the EPA, they splintered in their reasoning. Justice Samuel Alito wrote the majority decision. Alito wrote the court’s new interpretation “accords with how Congress has employed the term ‘waters’ elsewhere in the Clean Water Act.”

“The decision is important because it really curtails the scope of federal regulatory authority over wetlands,” said Jonathan Adler, a professor at Case Western Reserve University School of Law. “That’s going to be a relief to small landowners in particular.” Alito’s majority decision adopted an restrictive interpretation of the Clean Water Act laid out by the late Justice Antonin Scalia in a 2006 opinion that didn’t garner majority support at the time.

The Supreme Court’s ruling in the case comes less than a year after it curbed the EPA’s authority to limit emissions from coal plants. In that blockbuster case, West Virginia v. EPA, the court said the EPA had overstepped when it devised the Obama-era regulatory scheme known as the Clean Power Plan.

Thursday’s ruling was a victory for Michael and Chantell Sackett, a couple that wants to build a house on land they bought near an Idaho lake. The Sacketts, backed by the Pacific Legal Foundation, a conservative group that advocates for property rights, has been mired in litigation with the EPA since 2008.

This is their second trip to the Supreme Court. In 2012, they won a unanimous decision confirming their right to sue the EPA in federal court.

The Clean Water Act prohibits the “discharge of pollutants,” including rocks and sand, into “navigable waters.” The EPA has interpreted its jurisdiction broadly to include some wetlands that aren’t directly connected to a body of water, an interpretation it says is necessary to protect against water pollution and consistent with Congress’s intent in passing the landmark environmental-protection law.

There has been fierce debate about what areas fall within the statute’s jurisdiction ever since its enactment. Property owners hoping to build on or dredge wetlands are often required to seek permits from the EPA and the Army Corps of Engineers, which helps enforce the Clean Water Act.

The Sackett family property lies across a road about 300 feet from Idaho’s Priest Lake. Despite this buffer, EPA scientists and the Army Corps of Engineers determined the lot was a wetland covered by the Clean Water Act, citing a “shallow subsurface flow” linking it to the lake. That required the Sacketts to obtain federal permits before developing the property.

Wall Street Journal May 25 2023

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