Will Sackett v. EPA Make clear the Scope of Federal Regulatory Jurisdiction Over Wetlands?

On Monday, the primary day of the brand new Supreme Courtroom time period, the justices will hear oral argument in Sackett v. Environmental Protection Agency, by which the Sacketts are difficult the EPA’s authority to manage using their land beneath the Clear Water Act. Particularly, the Courtroom will think about how courts ought to decide whether or not a given parcel is topic to regulation beneath the Clear Water Act (CWA) as part of the “waters of the USA.” The ensuing determination might have dramatic implications for the scope of federal wetland regulation.

If the case title Sackett v. EPA sounds acquainted, that’s as a result of it ought to. Ten years in the past, the Supreme Courtroom heard one other case with that very same title, involving the identical litigants, and the identical Idaho property. In the first Sackett case, the problem was whether or not the landowners might get hold of judicial overview of an EPA administrative compliance order, directing them to revive their property or face ruinous monetary penalties. The Courtroom dominated unanimously for the Sacketts, recognizing the profoundly unjust nature of the EPA’s position. This time round, the query is whether or not the EPA has authority to manage the Sacketts in any respect.

The exact query earlier than the Courtroom is whether or not the court docket beneath (on this case, the U.S. Courtroom of Appeals for the Ninth Circuit) utilized the right customary when it concluded that the Sacketts’ property contained wetlands, topic to regulation as a part of the “waters of the USA,” topic to regulation beneath the CWA. (I mentioned the Ninth Circuit’s determination right here.)

The explanation there’s some uncertainty in regards to the correct take a look at is as a result of the final time the Courtroom thought-about this query, in Rapanos v. United States, the Courtroom splintered 4-1-4. Whereas a majority of the Courtroom concluded that the federal authorities’s was asserting regulatory authority past that which the CWA authorizes (as they’d in SWANCC v. U.S. Military Corps), the bulk couldn’t agree on the right take a look at. Justice Scalia (joined by three different justices) concluded that “waters of the USA” solely lined these waters and wetlands linked to navigable waters by a comparatively steady surface-water connection. Justice Kennedy, alternatively, thought the right take a look at was to find out whether or not a given water or wetland has a “important nexus” to waters of the USA.

Within the present case, the Sacketts are asking the Courtroom to embrace a take a look at primarily based upon Justice Scalia’s Rapanos plurality. Such a take a look at, they argue, is extra in step with the CWA’s textual content, and ensures that federal regulation doesn’t lengthen past the scope of Congress’s energy to manage commerce among the many a number of states (which is the purported foundation for the CWA’s laws).

The Solicitor Normal, alternatively, is asking the Courtroom to embrace Justice Kennedy’s concurrence. This latter place is itself notable, because the federal authorities appears to have deserted the much less bounded conception of federal regulatory authority it had pushed in Rapanos and SWANCC, and which had commanded the help of the Courtroom’s liberal justices in these prior instances. That is additionally notable as a result of the Obama Administration had sought to outline “waters of the USA” in a extra expansive style, and reaffirms the impression that the Biden Administration is adopting a extra restrained strategy.

Ought to the Sacketts prevail, the EPA and Military Corps of Engineers may have better issue asserting regulatory authority over properties that aren’t clearly linked to waters which can be themselves linked to navigable waters. This is able to meant that a good portion of the nation’s wetlands would now not be topic to federal regulatory management, although state governments could be free to undertake extra expansive laws, and federal companies might nonetheless pursue wetland conservation by different means (comparable to by fiscal measures, land acquisition, and incentive packages).

Ought to the Courtroom’s determination present better certainty in regards to the outer limits of federal regulatory authority, this might assist make clear the place federal authority ends and unique state regulatory authority begins. This is able to put the onus on state governments to undertake conservation measures inside their jurisdiction, however would additionally make it simpler for states to behave.

Whether or not states would fill the conservation void is an attention-grabbing query. At current, half the states already shield wetlands and waters extra broadly than does the federal authorities. The opposite half don’t, and a few have present legal guidelines that constrain state companies from adopting measures extra stringently than federal regulation.  Whether or not state legislatures would reform such legal guidelines is unclear, however it’s attention-grabbing to notice that State and native wetland regulation started a decade earlier than wetlands had been regulated beneath the CWA, and the sample of state wetland regulation was the other of that predicted by “race to the underside” idea (in that these states that might have been predicted to manage final and least truly regulated first and most aggressively). (I surveyed this historical past in this article from 1999.)

Ought to the Sacketts prevail, one other vital query might be how a narrowing of “waters of the USA” impacts the EPA’s potential to implement the CWA’s conventional pollution-control provisions. The definition of “waters of the USA” will apply to your complete Act, however the EPA could retain broader authority to manage conventional polluting actions on lands not in any other case topic to CWA jurisdiction given the Courtroom’s prior holding in County of Maui v. Hawai’i Wildlife Federation. As Robin Kundis Craig suggests , even when a given parcel (such because the Sackett’s property) shouldn’t be a part of the “waters of the USA,” actions on that parcel that lead to air pollution reaching regulated waters could possibly be ample to topic such actions to federal regulation. In different phrases, a Sackett victory might decontrol wetland growth on the federal degree with out deregulating a lot conventional water air pollution management.

As some readers could know, the scope of federal regulatory jurisdiction has been a longstanding topic of curiosity for me, and I’ve revealed a number of papers on the topic.  I’ll have extra to say in regards to the case after Monday’s oral argument. Within the meantime, these enthusiastic about studying extra in regards to the case and the problems concerned ought to take a look at this webinar on Sackett sponsored by the Coleman P. Burke Middle for Environmental Regulation on the Case Western Reserve College College of Regulation, that includes Professor Royal Gardner of Stetson and Jonathan Wooden of PERC.

For these enthusiastic about my prior writings on the topic, listed here are just a few:

• “Redefining ‘Waters of the United States,'” Regulation (2019);
• “Wetlands, Property Rights, and the Due Process Deficit in Environmental Law,” Cato Supreme Courtroom Assessment (2012);
• “The Clean Water Land Grab,” Regulation (2009);
• “Once More, With Feeling: Reaffirming the Limits of Clean Water Act Jurisdiction,” Vermont Regulation College (2007);
• “Reckoning with Rapanos: Revisiting ‘Waters of the United States’ and the Limits of Federal Wetland Regulation,” Missouri Environmental Regulation & Coverage Assessment (2006);
• “The Ducks Stop Here? The Environmental Challenge to Federalism,”  Supreme Courtroom Financial Assessment (2001);
• “Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetlands Regulation,” Environmental Regulation (1999).