The conservative Court struck another blow against environmental protection by significantly limiting the scope of the Clean Water Act. On Thursday conservative Justice Alito writing for the majority, ruled in Sackett v. EPA that the Act does not apply to wetlands near water bodies unless they are connected at the surface. The opinion flies in the face of hydrological science, ignores several decades of prior interpretation of the term "adjacent" and curtails authority of the EPA to enforce the requirements of the law. Conservative policy activists, developers and agriculturalists hailed the decision as a victory for property owners, The Sackett were represented by the Pacific Legal Foundation, funded in part by the Koch Bros. and Sarah Scaife. It will have major negative impacts on the nation's water quality according to experts.
The case was brought by homeowners who did not want to suffer the oversight of EPA for a "soggy residential lot" on which they wanted to build. The wetland in question was separated from Priest Lake by a road. The owners started to fill in the bog in 2007 with sand and gravel until they were ordered to stop and restore the land. Instead the wealthy couple sued the EPA. There was near unanimous agreement that the soggy lot was beyond regulation, but the Court split 5-4 on removing the EPAs authority over wetlands not connected to jurisdictional water bodies at the surface. Conservative Justice Brett Kavanaugh joined the minority on this issue. It was the second time recently the Court has limited the EPA's jurisdiction. In June it ruled to limit the ability of the agency to restrict power plant emissions contributing to global warming.
This Court clearly wants to undo the administrative framework of agency regulations governing a wide range of subjects from climate to finance to public health using a legal rubric of a "clear statement" from Congress to delegate authority to administrative agencies. It used a close cousin of this doctrine known as the "major question doctrine" to invalidate regulation of power plant emissions. Legal observers note that this doctrine was rarely used prior to this Court, but is a "pop-up" rule utilized recently by conservatives who are anti-regulation. Environmentalists are calling on Congress to explicitly include adjacent wetlands in an amendment to the Clean Water Act.