SUPREME COURT’S CLEAN WATER ACT RULING MAY SPELL DISASTER
Justice Antonin Scalia died more than seven years ago, but the Supreme Court’s decision in Sackett v. Environmental Protection Agency on Thursday shows that this is the “Scalia Court” far more so than when he was alive.
The ruling arrives almost a year after the court’s conservative majority made the worst fears of environmentalists a reality in West Virginia v. Environmental Protection Agency, which severely curtailed the ability of the nation’s environmental laws to protect public health and welfare. The Sackett ruling doubled down on that disregard for pollution and public health, and the effect will likely be devastating.
The precise legal issue decided in Sackett concerns the geographic scope of the 1972 Clean Water Act. Congress intended the law to end the practice of the nation’s waterways being used as the unregulated dumping ground for industrial pollution. The effect was transformational: For the first time in the nation’s history, any discharge of pollutants into the nation’s waterways absent a permit was unlawful, making it possible to safely fish and swim waters throughout the country.
Congress was not at all shy about the geographic reach of the Clean Water Act. The statute targeted discharges into “navigable waters,” but Congress also expressly defined that to include all “waters of the United States.” Since the mid-1970s, the courts have uniformly agreed that Congress intended with that expansive definition to extend the law’s protections far beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into the nation’s major rivers and lakes.
In a unanimous opinion for the court almost 40 years ago, Justice Byron White explained why. While acknowledging that “on a purely linguistic level, it may appear unreasonable to classify ‘lands’ wet or otherwise as ‘waters,’” the court said “such a simplistic response … does justice neither to the problem faced by the [government] nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”
Justice Samuel A. Alito Jr.’s opinion in Sackett, however, embraces the very “simplistic response” that the court rightly criticized in 1985. Relying on a dictionary definition of “waters” and ignoring the Clean Water Act’s purpose, the court’s conservative majority has adopted a radically truncated view of the reach of the law’s restriction on water pollution. Under the court’s new view, pollution requires a permit only if it is discharged into waters that are “relatively permanent, standing or continuously flowing bodies of water, ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams … oceans, rivers, and lakes.’” And “wetlands” are covered only if they are “indistinguishably part” of those narrowly defined covered waters.
This is exactly what Scalia wanted to accomplish in 2006 when the Clean Water Act was last before the court. He managed to cobble together three other votes to gut the law but fell one justice short. Now, with six conservative justices — three of whom are largely modeled in Scalia’s image — Alito was able to accomplish what Scalia never could by securing the necessary fifth vote.
The impact of the majority ruling is potentially enormous. It could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law’s direct protection. Basic protections necessary to ensure clean, healthy water for human consumption and enjoyment will be lost. As highlighted by Justice Elena Kagan’s separate opinion, the court’s opinion “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”
Nor will the nation’s economy be spared. Myriad businesses rely on clean water for their industrial processes. The fishing, real estate and tourism industry are all highly dependent on the protections that the Clean Water Act has provided over the past half century.
None of this was compelled by law. Even Justice Brett M. Kavanaugh rejected Alito’s majority view, announcing that he “would stick to the text.” Congress spoke clearly in the Clean Water Act about its ambitions and backed that intent up with deliberately sweeping language to provide EPA with the discretionary authority it needed to realize those goals. Our nation’s waters are far cleaner as a result. Yet, for the second time in less than a year, an activist Supreme Court has deployed the false label of “separation of powers” to deny the other two branches of the legal tools they require to safeguard the public.
Scalia might have been pleased. Our nation should not be.