SCOTUS Dumps EPA 'Waters of the US' Regulations

And, boy is PBS pissed, Supreme Court strips federal protections from some wetlands, boosts property rights

The Supreme Court on Thursday made it harder for the federal government to police water pollution in a decision that strips protections from wetlands that are isolated from larger bodies of water. It’s the second decision in as many years in which a conservative majority of the court narrowed the reach of environmental regulations.

The justices boosted property rights over concerns about clean water in a ruling in favor of an Idaho couple who sought to build a house near Priest Lake in the state’s panhandle. Chantell and Michael Sackett objected when federal officials identified a soggy portion of the property as a wetlands that required them to get a permit before building.

By a 5-4 vote, the court said in an opinion by Justice Samuel Alito that wetlands can only be regulated under the Clean Water Act if they have a “continuous surface connection” to larger, regulated bodies of water. There is no such connection on the Sacketts’ property. The court jettisoned the 17-year-old opinion by their former colleague, Anthony Kennedy, allowing regulation of wetlands that have a “significant nexus” to the larger waterways.

Kennedy’s opinion had been the standard for evaluating whether wetlands were covered under the 1972 landmark environmental law. Opponents had objected that the standard was vague and unworkable.

Environmental advocates had predicted that narrowing the reach of that law would strip protections from more than half the wetlands in the country.

Reacting to the decision, Manish Bapna, the chief executive of the Natural Resources Defense Counsel, called on Congress to amend the Clean Water Act to restore wetlands protections and on states to strengthen their own laws.

Pass legislation that does it, rather than have faceless bureaucrats declare it by fiat? What a novel thought. 

“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price,” Bapna said in a statement.
. . .
In Thursday’s ruling, all nine justices agreed that the wetlands on the Sacketts’ property are not covered by the act.

But only five justices joined in the opinion that imposed a new test for evaluating when wetlands are covered by the Clean Water Act. Chief Justice John Roberts, Justice Clarence Thomas and Alito would have adopted the narrower standard in 2006, in the last big wetlands case at the Supreme Court. They were joined Thursday by Justices Neil Gorsuch and Amy Coney Barrett.

'Bonchie' at Red State, on the other hand, was pleased as punch, Major SCOTUS Decision Neuters EPA, Leaves Democrats Spinning in Circles

In the first major release of the term, the US Supreme Court reached a decision in Sackett v. Environmental Protection Agency case. The Justices all ended up at the same place, finding that the EPA had erred in its use of regulatory power against a family trying to build a home on their property in Idaho.

Ed Morrisey over at HotAir offers this summary of the case.

In this case, which has been percolating for years, the Obama-era EPA had defined the term “wetland” in the Clean Water Act and Waters of the US rule (WOTUS) as basically any land where water naturally pooled on occasion. That led the EPA in 2004 to block Mike and Chantell Sackett from completing a home on their residential-zoned Idaho lot of less than an acre and socking them with massive per-day fines until they dismantled what had already been built — even though their land was nowhere near a navigable body of water, as the WOTUS rule required. I wrote about this in 2011 when the Sacketts first went to the Supreme Court for relief, only to see the case punted on the core question in that term. They did strike down the EPA’s fines, but did not rule on the validity of their claim to jurisdiction over the Sackett’s so-called “wetland.”

For years, the Sackett’s have fought the government, which previously declared that regulatable wetlands existed on their lot, which comes in at less than one acre. In short, this case was about whether the EPA could declare random ditches and puddles to be “waters of the United States” and essentially destroy the rights of property owners in the process.

While the overall decision was 9-0, finding that the EPA went too far in its interpretation of its power, the Justices split when it came to their concurrences. The liberals, led by Justice Elena Kagan, wrote that the court was going too far in deciding what environmental policy in the country is. Personally, I find that to be ludicrous. If a bureaucracy oversteps its legal bounds, who else but the courts would be able to offer protection to normal Americans suffering under such tyranny? Congress certainly can’t act on such a case-by-case basis.

As to the conservatives, five of them, led by Justice Samuel Alito, took the approach of actually laying out what the EPA can and can’t do under the Clean Water Act. They noted that for something to be regulated as a “water of the United States,” it must actually be connected to such in a continuous fashion. That seems proper given anything else is just a free-for-all, with the EPA getting to decide arbitrarily which pieces of private property it can exert near total power over. Imagine buying a piece of land and then the federal government telling you it’s now worthless and that you can’t live on it because they say so. That’s what happened to the Sacketts.

Lastly, Justice Brett Kavanaugh split off from everyone, agreeing with the majority but writing that Alito’s interpretation went too far and will negatively affect the quality of water in the United States. That would seem to suggest that he might not be fully on board with getting significantly altering the Chevron Doctrine when that case is decided next term. Still, the fact that the other five conservatives did vote to neuter the EPA says the votes to do something significant probably exist