HomeOthersSupreme Court Limits E.P.A.’s Power to Address Water Pollution - UnlistedNews

Supreme Court Limits E.P.A.’s Power to Address Water Pollution – UnlistedNews

The Supreme Court on Thursday restricted the authority of the Environmental Protection Agency to police millions of acres of wetlands, dealing another setback to the agency’s ability to combat pollution.

Writing for five justices, Judge Samuel A. Alito Jr. said the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have “continuous surface connection” to those waters.

The decision was a second major blow to the authority of the EPA and the power of managing agencies in general. Last year, the court limited the EPA’s power to address climate change under the Clean Air Act.

Environmental law experts said the decision would leave many wetlands subject to pollution without penalty, dramatically undermining the EPA’s authority to protect them under the Clean Water Act.

“This is a truly disastrous result for wetlands, which have become absolutely vital for biodiversity preservation and flood control,” said Patrick Parenteau, a professor at the Vermont Law School.

Kevin Minoli, who served as EPA’s lead attorney from the Clinton to Trump administrations, overseeing enforcement of the Clean Water Act regulations, said the decision would have enormous practical consequences and estimated it would affect more than half of the country’s wetlands.

“If you are in an area with a lot of wetlands, but those wetlands are not directly connected to a continuously flowing body of water, then those wetlands are no longer protected under the Clean Water Act,” he said.

The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to agency oversight because the wetlands on their property were not subject to regulation in any case. But there was strong disagreement over a new test that the majority established to determine which wetlands are covered by the law.

Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would hurt the federal government’s ability to address pollution and flooding.

“By reducing wetlands law coverage to only contiguous wetlands,” he wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the country”. USA.”

In a second concurring opinion, Justice Elena Kagan, referring to the court’s June decision to reduce the EPA’s ability to restrict emissions from power plants, criticized the majority’s interpretation of the law.

“There,” he wrote, “the non-textualism of the majority prevented the EPA from addressing climate change by reducing emissions from power plants in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the appointment by the court of itself as national decision-maker in matters of environmental policy.”

The ruling was also another example of the court’s skepticism about the authority of administrative agencies, said Jonathan H. Adler, a professor of law at Case Western Reserve University. “The current court,” he said, “is clearly not willing to delegate to an agency the extent of that agency’s power.”

Damien Schiff, a lawyer with the Pacific Legal Foundation, which is representing the property owners in the case, praised the Supreme Court’s decision. “The courts now have a clear yardstick for the fairness and consistency of federal regulators,” he said in a statement. “Today’s ruling is a profound victory for property rights and the constitutional separation of powers.”

President Biden expressed his dismay at the ruling and said his administration would consider next steps. “It puts our nation’s wetlands, and the rivers, streams, lakes and ponds connected to them, at risk of contamination and destruction, endangering the clean water sources on which millions of American families, farmers and businesses depend.” he said in a statement. statement.

The case, Sackett v. Environmental Protection Agency, No. 21-454, was referring to an Idaho couple, Michael and Chantell Sackett, who were looking to build a home on what an appeals court called “a soggy residential lot” near Priest Lake, in the panhandle. of the state.

After the couple began preparing the property for construction in 2007 by adding sand, gravel and fill, the agency ordered them to stop and return the property to its original condition, threatening them with substantial fines. Instead, the couple sued the agency, and a dispute over whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the judges ruled that the lawsuit could continue.

In a concurring opinion at the time, Judge Alito said the law gave the agency too much power.

“The scope of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet for at least part of the year is in danger of being classified by EPA employees as covered wetlands by law, and by the federal government, if homeowners start building a house on a lot. that the agency believes has the required moisture, property owners are at the agency’s mercy.”

On Thursday, the nine justices agreed that the agency had gone too far in trying to regulate the Sacketts’ property.

“I agree with the final judgment of the court,” Judge Kavanaugh wrote, “that wetlands on the Sackett property are not covered by law and therefore not subject to permit requirements.”

That suggested the court could have made a much more limited ruling, Professor Parenteau said.

“They could have made a limited decision based on the facts of the Sackett case and said, in this case, where a wetland is this small and not connected to the lake, it should not be subject to federal control.”

Instead, he said, the majority “crafted an entire United States policy based on this particular set of facts from this property in northern Idaho.”

The two sides differed Thursday primarily on the Clean Water Act’s coverage of wetlands that are “adjacent” to what the law calls “waters of the United States.”

That second term, Justice Alito wrote, was “decidedly not a well-known artistic term” and a “frustrating wording choice.” He said it included “streams, oceans, rivers, and lakes.”

But what does it mean for wetlands to be “adjacent” to such bodies of water? Judge Alito wrote that the term can mean “contiguous” or “nearby.” For the purposes of the Clean Water Act, he wrote, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

The four minority judges had a different opinion.

“‘Adjacent’ and ‘contiguous’ have different meanings,” Judge Kavanaugh wrote, adding that it would have included wetlands that are “separated from a water covered only by a man-made levee or barrier, a natural river berm, a beach dune or the like.”

He added: “There is a good reason why Congress covered not only contiguous wetlands but adjacent wetlands as well. Due to the movement of water between adjacent wetlands and other waters, contaminants from wetlands often end up in adjacent rivers, lakes, and other waters.

Judge Kagan gave an example of the difference between contiguous and adjacent.

“In ordinary language,” he wrote, “one thing is adjacent to another not only when it is touched, but also when it is near. close separates the two.”

Justice Alito responded, citing an earlier decision, that Congress must use “extremely clear language if it wants to significantly alter the balance between federal and state power and the government’s power over private property.”

Justice Kagan wrote that last year’s climate change decision used similar reasoning, invoking “another clear statement rule (the so-called lead questions doctrine) to diminish another clearly expansive term.”

He added: “Today’s emerging clear statement rule is explicable only as a thoughtful response to Congress’s enactment of an ambitious environmental regulatory scheme. It is an effort to box in anti-pollution actions that Congress deemed appropriate.”

Lower courts ruled that the Sacketts’ property was a wetland that the agency could regulate, and concluded that it qualified under a 2006 Supreme Court decision, Rapanos v. USAthat he relied on competing tests to decide that question.

Justice Antonin Scalia, who died in 2016, wrote on behalf of four justices in the Rapanos decision that they only qualify wetlands with “a continuous surface connection” with “relatively permanent, standing or flowing bodies of water.”

Justice Anthony M. Kennedy, who retired in 2018, said in a concurring opinion that the law only required a “significant nexus” between the wetlands in question and the bodies of water.

Thursday’s decision rejected that view. “It is astonishing,” Professor Adler said, “that no judge has sought to preserve the ‘significant nexus’ test that Justice Kennedy had articulated in Rapanos.”

Coral Davenport contributed reporting.

Source

Sara Marcus
Sara Marcushttps://unlistednews.com
Meet Sara Marcus, our newest addition to the Unlisted News team! Sara is a talented author and cultural critic, whose work has appeared in a variety of publications. Sara's writing style is characterized by its incisiveness and thought-provoking nature, and her insightful commentary on music, politics, and social justice is sure to captivate our readers. We are thrilled to have her join our team and look forward to sharing her work with our readers.
RELATED ARTICLES

LEAVE A REPLY

Please enter your comment!
Please enter your name here

Most Popular

Recent Comments