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Return of Wetlands Case to SCOTUS Could Determine EPA Reach

The outcome of a landmark 2006 Clean Water Act case that’s headed back to the Supreme Court this fall will have major implications for the EPA’s “authority and ability to regulate isolated wetlands, tributaries and ephemeral streams as ‘waters of the United States,’ or WOTUS,” according to E&E News’ Greenwire.

What’s happening: The case, Sackett v. Environmental Protection Agency, centers on Idaho couple Chantell and Michael Sackett’s battle to be able to build a home on their land.

  • October will mark “the Sacketts’ second trip to the Supreme Court. In 2012, the justices sided 9-0 with the couple in their battle for judicial review of an EPA order that stopped them from building their house and threatened fines of more than $30,000 a day.”
  • In a previous WOTUS-related case, Rapanos v. United States, Justice Antonin Scalia “found EPA’s authority and the definition of WOTUS should only extend to relatively permanent waters.”
  • But complicating the decision was the plurality opinion of Justice Anthony Kennedy, who said “wetlands and small waterways should be federally protected if they have a ‘significant nexus’ to an actual navigable waterway.”

Why it matters: At issue is the scope of EPA jurisdiction, particularly when it comes to land that is near wetlands or water bodies.  

  • “Despite the previous court decisions, in 2015 EPA issued a WOTUS rule that attempted to claim broad power over lands that were not even wet, but fortunately it was blocked by the courts,” NAM Vice President of Policy Energy and Resources Rachel Jones explained to Input.
  • “Manufacturers have long called for clear rules to protect clean water and the 2020 WOTUS rule finally scaled back EPA’s jurisdictional claims to match the Court’s decisions and the law more closely,” Jones said. “However, the Biden administration has pledged to redraw the map yet again.”
  • “Whichever way the court rules, its decision will arrive before EPA makes a move to finalize its own definition of WOTUS,” the Greenwire article reads. “The agency recently said a proposed rule won’t arrive until next year.”

How will SCOTUS rule? While legal experts expect the court to take Scalia’s view come October, they disagree on how the justices will reach it.

  • In its June ruling on West Virginia v. Environmental Protection Agency, the court used a “literal language” interpretation of the Clean Air Act to arrive at its decision that the EPA lacked the authority require an overhaul of the electric sector.
  • The court’s conservative majority, experts say, is eager to side with Scalia’s view, but may be less likely to rely on the “major questions doctrine” on which it relied in the climate case.

The last word: “This decades-long WOTUS saga might be interesting to academics, but the legal limbo is incredibly expensive for real people like the Sacketts and for manufacturers who want to expand a facility or for a community that needs to rebuild a bridge,” Jones told us.

  • “We have to stop chasing the regulatory ping-pong ball if we want to onshore more manufacturing and strengthen our competitiveness. Modernizing permitting is non-negotiable for manufacturers.”
  • “Manufacturers are hopeful that a clear decision from the court will provide important guardrails that EPA can then use to finally write a WOTUS rule that will work for people and the planet.”
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