The Supreme Court votes for clarity from Congress. How refreshing.
“Jarndyce and Jarndyce drones on.”
— “Bleak House,” by Charles Dickens
WASHINGTON >> Dickens imagined the probate case Jarndyce and Jarndyce that has become synonymous with interminable and futile court proceedings: The entire estate at issue was consumed by litigating about it. Last week, the Supreme Court ended a case that was Jarndycean in length but not in futility. The nation will be better governed because Michael and Chantell Sackett began resisting the Environmental Protection Agency 16 years ago.
In 2004, planning to build a house, they bought, in an established subdivision, a parcel of land 300 feet — think of a football field — from Priest Lake in Idaho, with a row of houses between their land and the lake. Preparing for construction in 2007, they added gravel and sand to the land. The EPA, citing a subsurface flow of moisture and a nearby ditch that drains into a stream that flows into the lake, ordered them to stop and restore the land to its original condition. The EPA was wielding the Clean Water Act, which regulates “navigable waters.”
In 2012, the Supreme Court ruled unanimously for the Sacketts and against the EPA’S contention that its compliance orders are not subject to judicial review. Last week, the court ended the Sacketts’ saga, holding that the EPA could not regulate their land as navigable water.
This was the second time in 11 months that EPA overreaching provoked the Supreme Court to strengthen the rule of law. Last June, the court ruled that when the Clean Air Act empowered the EPA to implement the “best system of emission reduction” from electricity generation, Congress did not with one syllable (“best”) unleash the EPA to decree a multibilliondollar redesign of the nation’s entire power-generating industry, forcing a shift from coal.
The court held that if Congress intended this, it should have clearly said so. Regarding “major questions” — matters with immense economic and political consequences — the legislature must legislate rather than leave substantive lawmaking to executive agencies.
In the Sacketts’ case, the judicial branch again reproved the executive branch’s discretion-as-lawmaking, and reminded the legislative branch that agencies’ unwarranted power fills spaces created by inexplicit (“best”) legislative language. Doing so, the court buttressed the rule of law: Law must give adequate notice of what behavior is required or proscribed.
Last year, the New York Times warned that inhibiting the EPA’S sovereignty over electric power generation would reduce “the federal government’s authority” to regulate harmful emissions. Wrong. Congress is (this fact frequently distresses progressives) part of the government, and can explicitly authorize the EPA to do what the Clean Air Act does not clearly do.
After last week’s Sackett decision, the Wall Street Journal’s headline said: “Supreme Court Further Erodes EPA’S Power,” and The Post headline said, “Supreme Court weakens EPA power to enforce Clean Water Act.” More precisely, the court curtailed the EPA’S illegitimate exercise of a major power that Congress never explicitly conferred.
Progressives, who abhorred last June’s and last week’s decisions, currently denigrate the “imperial” Supreme Court. This is peculiar. In three decisions since the end of last June, the court has receded from making abortion policy and has notified the legislature that it must write laws with “exceedingly clear language” to relieve the court from making environmental policy by divining congressional intent that inexplicit congressional language leaves obscure.
The justices unanimously sided with the Sacketts, but differed about the wetlands standard the EPA should adopt. And Justice Elena Kagan, remembering and regretting the court’s reprimand of the EPA last June, deplored “the Court’s appointment of itself as the national decisionmaker on environmental policy.” Actually, in last week’s and last year’s cases, the court merely asked Congress to make policy clearly.
The supposedly imperial court merely limited the EPA’S freedom to define statutory language — “waters of the United States” — that Congress has left undefined, and that the EPA has defined to include even some land that is only intermittently damp. The court also opted for modesty by including in the category waters of the United States only what common usage would suggest: “streams, oceans, rivers, and lakes,” or a body of water permanently connected to one of these, and “wetlands” having a “continuous surface connection” with such. This overturns an unhelpful 2006 court precedent that defined “wetlands” as moisture having a “significant nexus” to streams, oceans, etc.
Case by case, in cumulatively transformative increments, the court is reviving reasonable rules that should govern those who govern us.