The Supreme Court voted to rein in the power of the U.S. Environmental Protection Agency (EPA) to regulate wetlands in a ruling issued on May 25, the latest in a series of rulings curbing federal regulatory authority.
The nation’s High Court ruled in favor of an Idaho couple who have been battling federal officials for years over the right to develop their own property.
The case, Sackett v. EPA (court file 21-454), was argued on Oct. 3, 2022.
The court’s majority opinion was written by Justice Samuel Alito.
Agencies Ordered Work to Stop
Chantell and Mike Sackett had started building a new home in Priest Lake, Idaho, when the EPA and Army Corps of Engineers suddenly ordered them to stop all work.
The two government agencies stated that the couple needed a federal permit and threatened them with more than $30,000 in daily fines.
The EPA had determined years before that their parcel of land contained wetlands. The Sacketts say their lot lacks a surface water connection to any stream, creek, lake, or other water body, and it shouldn’t be subject to federal regulation and permitting.
Even though water isn’t usually visible on their land, the government claims that, based on aerial photography, the lot is home to a fen wetland.
Fens are “peat-forming wetlands that rely on groundwater input and require thousands of years to develop and cannot easily be restored once destroyed,” according to a USDA Forest Service report.
They are “hotspots of biodiversity” and “figure prominently in nearly all scenarios of CO2-induced global change because they are a major sink for atmospheric carbon.”
The Sacketts had asked the Supreme Court to revisit its 2006 ruling in Rapanos v. United States, which was a fractured plurality decision that created uncertainty about the applicable legal standard.
Led by the late Justice Antonin Scalia, four of the nine justices found that the Clean Water Act regulates a wetland only if it has a continuous surface connection to another waterway.
Then-Justice Anthony Kennedy devised his own legal test, finding that the law covers wetlands that have a “significant nexus” to a larger body of water. The Biden administration argued for the nexus standard.
In his new opinion, Alito described the Clean Water Act (CWA), the principal federal law regulating water pollution in the United States, as “a great success.”
“Before its enactment in 1972, many of the Nation’s rivers, lakes, and streams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerly fetid bodies of water are safe for the use and enjoyment of the people of this country.
“There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act’s geographical reach have been uncertain from the start.
“The Act applies to ‘the waters of the United States,’ but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”
‘Bumpy and Costly’ Voyage
The Sacketts, Alito noted, “have spent well over a decade navigating the CWA, and their voyage has been bumpy and costly.”
The EPA found that the so-called wetlands on their land was “adjacent to” an “unnamed tributary” on the other side of a 30-foot road. The tributary feeds into Priest Lake, a body of water the EPA has determined is traditionally navigable.
To establish “a significant nexus,” the EPA lumped the Sacketts’ lot together with the Kalispell Bay Fen, a large nearby wetland complex that the agency regarded as “similarly situated.”
“According to the EPA, these properties, taken together, ‘significantly affect’ the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto ‘the waters of the United States.’”
A federal district court dismissed the Sacketts’ lawsuit under the Administrative Procedure Act that claimed the EPA lacked jurisdiction because any wetlands on their land were not “waters of the United States,” Alito wrote.
The U.S. Court of Appeals for 9th Circuit affirmed, finding the CWA “covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.”
But the Supreme Court determined that the EPA overreached, finding that the CWA “extends to only those ‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,’ so that they are “indistinguishable” from those waters.”
“The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” Alito wrote.
The Supreme Court remanded the case to the 9th Circuit “for further proceedings consistent with this opinion.”
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