WASHINGTON — In the first debate of the Supreme Court’s new term and the first to feature its newest member Judge Ketanji Brown Jackson, the judge on Monday will crack down on some form of water pollution. I examined the controversy surrounding the authority of the Environmental Protection Agency.
In June, on the final day of his final term, the court limited the EPA’s authority to address climate change under the Clean Air Act.
The new lawsuit concerned its powers under the Clean Water Act, another law that allows regulation of emissions into what the law calls “the waters of the United States.”
The problem for judges was how to determine which wetlands qualify as such water bodies.
Much of the debate has been about the meaning of the word “adjacent” used in the law to describe covered wetlands.
Several judges said that “adjacent” did not require the property in dispute to touch or be adjacent to a body of water. they said.
After about 10 minutes of discussion, Judge Jackson asked a series of detailed questions about the purpose of federal law and how to determine whether a particular wetland is subject to federal law.
“If the purpose of the law is to ensure the chemical, physical and biological integrity of the nation’s waters, why would Congress draw a protected area boundary between adjacent wetlands?” Do you?” she asked.
Understanding the Supreme Court’s New Term
Damien M. Schiff, an attorney at the Pacific Legal Foundation who is representing property owners in the lawsuit, said the law creates a conflict between “water quality issues” and “traditional state rights over land and water resources.” He said it was meant to be a balance.
Several conservative members of the Supreme Court said that interpreting the law broadly gave authorities too much arbitrary power. , called for clarification on the precise and predictable criteria under which wetlands are under EPA jurisdiction. Mr. Fletcher’s answer did not satisfy justice.
Judge Gorsuch asked, “If the federal government doesn’t know about covered swamps, how do people in federal prisons know?”
Justice Sonia Sotomayor said the authorities may be vulnerable in that regard. “Some of my colleagues doubt that this is a sufficiently accurate definition of adjacency,” she said.
This case, Sackett v. Environmental Protection Agency, No. 21-454, involved Michael and Shantel Sackett, who attempted to build a home in what they called the “Waterlogged Housing Area” near Priest Lake, Idaho. State panhandle.
After they added gravel and began preparing for construction in 2007, the agency ordered them to shut down and put it back in place, threatening a hefty fine. The lawsuit, and a dispute over whether the lawsuit was premature, reached the Supreme Court on an earlier appeal. ruled by the judge be able to proceed with litigation.
of Consensus opinion At the time, Judge Samuel A. Alito Jr. said the law gave government agencies too much power.
“The Clean Water Act’s coverage is notoriously unclear,” he wrote. According to the federal government, land that is wet for at least part of the year is at risk of being classified as a wetland subject to the law by EPA officials if property owners begin building homes on it. there is. Property owners are at the mercy of agents if they think they have the moisture they need. ”
A lower court considered whether the Sacketts property was an agency-regulated wetland and concluded that it did qualify under a 2006 Supreme Court ruling. Lapanos vs Americawhich featured competing tests to determine that question.
Judge Antonin Scalia, writing for four judges, said only wetlands with “continuous surface connection” to “relatively permanent, standing or flowing water” are eligible. Under that test, the Sackets are likely to win.
Justice Anthony M. Kennedy, in a concurring opinion, called for only a “significant link” between the wetlands and bodies of water in question.
A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that Judge Kennedy’s opinion was the dominant one, and that under his test the Sacketts wetlands were “ecologically significant.” The Sacketts lost the case because they had the right to conclude that the The integrity of Priestlake.
Schiff, an attorney for the Sacketts, asked the judge to drop the test, saying it was too broad and vague. Judge Kennedy, who retired in 2018, was in court and calmly watched the debate.
Judge Sotomayor asked Mr. Schiff whether the “underground water flow” was sufficient to give authorities jurisdiction over the property.
He replied, “The problem with relying on any sort of underground connection is that it inherently makes testing infinite.”
The two judges reflected on their childhoods as they considered the agency’s scope of authority.
“I grew up in the lowlands of Georgia and was waterlogged,” said Judge Clarence Thomas. “That was the norm. And I’m thinking of natural things that probably aren’t covered.”
Judge Amy Coney Barrett said it was nothing.
“Judge Thomas says he grew up in the lowlands of Georgia and I grew up in New Orleans. “The whole thing is below sea level.”