Supreme Court limits environmental protection for wetlands
WASHINGTON — The Supreme Court on Thursday limited federal protection for millions of acres of wetlands, ruling for property rights over clean water.
In a 5-4 decision, the justices said the Clean Water Act does not forbid discharges of pollutants into marshy areas or dry creek beds because water does not flow directly from them into a river, lake or bay. The decision will allow the development of those areas without federal review.
The court ruled for a couple who were blocked from building a home on a soggy vacant lot next to scenic Priest Lake in Idaho.
“We hold 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,” said Justice Samuel A. Alito Jr. for the conservative majority.
That definition leaves out many wetlands, and its effect could be greatest in the West and other areas where streams are dry for part of the year.
Justices Brett M. Kavanaugh, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented and said Congress intended to protect more wetlands from development, including marshy areas that are near rivers or streams but are not directly connected to them.
The decision in Sackett vs. EPA is a victory for landowners and developers and a defeat for environmentalists.
Sam Sankar, vice president of programs at Earthjustice, denounced the decision. It “undoes a half-century of progress generated by the Clean
Water Act. Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers, “he said. “This decision is the culmination of industry’s decades-long push to get conservative courts to do what Congress refused to do.”
West Virginia Atty. Gen. Patrick Morrisey welcomed the ruling. “We now have a clearer definition for Waters of the United States, and we’re pleased the Supreme Court ruled in a way that state lands and waters are less subject to the whims of unelected bureaucrats,” he said. “Today is a big day for farmers, homebuilders, contractors, property owners and those who care about economic activity not being subject to overreach by the federal government.”
All nine justices agreed the Idaho couple’s vacant lot was not a protected wetland, but they disagreed on how to define that term.
Alito, joined by four conservatives, adopted a view espoused by the late Justice Antonin Scalia that the federal law protected only connected bodies of waters, not adjacent wetlands.
But Kavanaugh and the court’s three liberals said that Congress and the court had taken the view for decades that wetlands that were adjacent to rivers or bays were protected.
Thursday’s decision effectively overturns a moderate position set by Justice Anthony M. Kennedy in 2006. He said the law should protect marshy areas or dry creek beds that can sometimes send water flowing into a river or bay. He rejected Scalia’s view that the EPA could protect only continuously flowing bodies of water.
But with the addition of Justices Neil M. Gorsuch and Amy Coney Barrett, the court has adopted Scalia’s view and cast aside Kennedy’s view.
Thursday’s ruling limiting the EPA does not prevent states like California from protecting wetlands. But developers, home builders and farmers have argued that they should not be prevented from using land that includes marsh areas.