Sackett Case Unlikely to Trim EPA Wetland Authority

The US Supreme Court opened its new term Oct. 3 oral arguments in Sackett v. EPA, another installment in the court’s decades-long effort to shine light on when a “wetland” is a “water of the United States”—subject to the permitting jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers under Section 404 of the federal Clean Water Act.

The court’s term is loaded with ideologically freighted cases that will provide ample opportunity for the conservative super-majority to rattle environmental and other progressive communities. Sackett might yet turn out to be one of those cases, but the oral arguments suggest that the case may end with a whimper.

Two-Decade Challenge

The facts in Sackett are well-known in environmental law circles. Michael and Chantell Sackett have spent the last two decades challenging the EPA’s authority to require them to obtain a Clean Water Act permit before filling wetlands on a small parcel of land they own on Priest Lake in Idaho.

These wetlands are within about 100 yards of the lake, separated by a roadway. The Sacketts argue that the roadway relieves them of the need to apply for a Section 404 permit because it severs any physical connection between the wetland and the lake, rendering the wetland non-“adjacent” and therefore non-jurisdictional under the test articulated by Justice Antonin Scalia in the court’s 2006 decision in Rapanos v. United States.

The EPA argues that the Sacketts’ wetland is jurisdictional under Justice Anthony Kennedy’s opinion in Rapanos, which articulated a broader, “nexus”-based test for identifying wetlands that the EPA may regulate for the sake of water quality, and also under regulations through which the EPA and the Corps administered the Section 404 program long before Rapanos was decided.

Prior Tests Considered

Sackett presents the court with the binary question of who was right in Rapanos: Scalia or Kennedy?

For this court, the answer felt pre-ordained. The conservative majority naturally could be expected to sympathize with the Sacketts’ position that the government, properly constrained by the commerce clause and general principles of federalism, has no business telling them what they can do with their land.

But at oral argument, justices across the spectrum appeared equally uncomfortable with both the Scalia and Kennedy tests—the former as too narrow in view of the purpose of the Clean Water Act, and the latter as too vague. The colloquy devolved into pedestrian musings about topics such as whether train stations are “adjacent” to the tracks.

So the anticipated weighted coin flip between Scalia and Kennedy seems not to be in the offing. What then will the court do, other than perhaps regret its decision to hear the case in the first place?

The conservative majority is unlikely to hold that, because the statutory language—“waters of the United States”—is ambiguous as applied to wetlands, the EPA has the latitude to interpret the phrase within reasonable bounds.

That approach would breathe life into doctrines of administrative law that are unpopular with conservative judges.

Nor is the court likely to bless either the Kennedy-esque jurisdictional approach taken in the Obama administration’s Clean Water Rule, or the Scalia-esque approach taken in the Trump administration’s Navigable Waters Rule. Neither of these regulations is presently in effect, and Sackett is not technically or, in light of last week’s hearing, logically a vehicle for reviving either of them.

Outlook

There is, however, a signal in the justices’ questions that a bipartisan majority may be nostalgic for the approach that Democratic and Republican administrations alike took to interpreting “adjacency” for decades prior to 2015.

This would result in a less-than-earth-shattering decision permitting the EPA to administer the law as it did before 2015, and as it does now, during its pending effort to issue yet another new rule on the topic, unless and until Congress amends the statute to draw brighter lines between wetlands that are “waters of the US” and those that are not.

It seems unlikely that the court would strip the EPA of any authority to regulate wetlands until Congress speaks. Although such a decision arguably would be aligned with the “major question” doctrine that underpinned the court’s decision in last term’s West Virginia climate case, there was no hint at the hearing that the court is inclined to head again down such an inflammatory and environmentally risky path.

Sackett is, after all, about a wetland not much larger than an ice rink. It would be fitting if the court’s decision is of a similar moment.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Peter Alpert is a real estate partner at Ropes & Gray. He has practiced environmental and land use law for nearly 30 years, and has followed the Sackett case closely.