Clean Water Act: Supreme Court rewrites a law

“The Supreme Court just gutted the Clean Water Act”—and “the effect will likely be devastating,” said Richard J. Lazarus in The Washington Post. Last week, “an activist Supreme Court” voted 5-4 to roll back the 1972 Clean Water Act in Sackett v. Environmental Protection Agency, severely curtailing the EPA’s authority to block development and discharges of pollution into marshes and bogs that empty into rivers, lakes, and oceans. The Clean Water Act authorizes the agency to regulate “navigable waters,” which Congress expressly defined to include wetlands “adjacent” to larger bodies of water. But the Supreme Court’s conservatives threw out 50 years of precedent, ruling that wetlands can be protected only if they have “a continuous surface connection” to larger bodies of water. So radical was this ruling that Justice Brett Kavanaugh sided with the three liberal justices and criticized his colleagues for ignoring “the text” of the law and showing a blatant “disregard for pollution and public health.”

Actually, this ruling signals “a welcome trend” from the court’s conservative majority, said Andrew C. McCarthy in National Review. The Clean Water Act’s definitions of “navigable waters” and “adjacent” were overly broad and unclear—“ambiguity that administrative agencies exploit in order to extend regulatory reach.” The EPA has gradually “stretched” the definition of waters it regulates so far “that it could mean the Mississippi River or a puddle in your backyard,” enabling bureaucrats and environmental activists “to stop people from building on their property.” This was a “landmark decision pruning back an overgrown administrative state,” said The Wall Street Journal in an editorial. “The majority simply stopped a regulatory land grab.”

It’s the conservative justices who are engaging in an abuse of power, said Mark Joseph Stern in Slate. This court apparently believes it has a “sacred duty to rewrite” any law it doesn’t like. The text and clear intent of the Clean Water Act did not meet with the approval of Justice Samuel Alito and his brethren—so they simply substituted their own language and policy preferences. That was “so indefensible” that even Kavanaugh tartly reminded his colleagues of their supposed commitment to “textualism.” Sadly, this court just removed about half of the country’s wetlands from protection, giving “landowners maximum latitude to fill in, build upon, or otherwise obliterate some of the most valuable ecosystems on Earth.”