The Supreme Court ruled on Thursday that the Environmental Protection Agency (EPA) may only regulate wetlands when they possess "a continuous surface connection" to other large regulated bodies of water. While this may on the surface seem like a mundane decision, experts believe it will have profound implications for environmental protection in America, putting some of its most vulnerable ecosystems at risk. Indeed, by limiting the EPA's authority in its recent decision, the Supreme Court is continuing a pattern of rolling back environmental regulations that could radically alter life on this planet.
"This decision makes plain how ideologically driven and non-judicious the group of justices led by Alito and followed by Thomas, Gorsuch, Barrett, and often (including this time) Roberts clearly are."
The case involved a couple in Idaho, Michael and Chantell Sackett, who wanted to build a property on a land that the EPA had deemed a protected wetland. Throwing out a precedent by moderate Justice Anthony Kennedy, which allowed the EPA to protect wetlands if they have a "significant nexus" to nearby regulated waters, conservative Justice Samuel Alito's majority opinion in Sackett v. EPA limited the scope of the Clean Water Act of 1972 in ways that benefit businesses over the environment. Although the court ruled unanimously for the Sacketts, the three liberal judges were joined by conservative Justice Brett Kavanaugh in articulating different reasons than the one propounded by the majority. Although they felt there were other reasons why the Clean Water Act did not apply to the Sacketts' property, they expressed concern with the conservative ruling for making it more difficult to protect water in the name of the public interest.
Justice Elena Kagan, one of the liberal judges, wrote in her opinion that the Supreme Court has appointed "itself as the national decision-maker on environmental policy" instead of applying the Clean Water Act as its authors intended. Kagan added that "that is not how I think our Government should work — more, because it is not how the Constitution thinks our Government should work — I respectfully concur in the judgment only." In agreeing with the three liberal judges, the usually-conservative Kavanaugh argued that "the Court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States."
Harvard University law professor Laurence Tribe told Salon by email that the recent decision reflects the larger right-wing agenda of the Supreme Court's new majority.
"I think the four justices who were prepared to read what Congress wrote as genuine textualists clearly had it right and was especially impressed by Justice Kagan's opinion and by that of Justice Kavanaugh," Tribe explained. "Taken together with last year's equally dismal and probably even more damaging 'major questions' ruling in West Virginia v. EPA, this decision makes plain how ideologically driven and non-judicious the group of justices led by Alito and followed by Thomas, Gorsuch, Barrett, and often (including this time) Roberts clearly are."
"The Court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States."
West Virginia v. EPA was a Supreme Court case last year in which the conservative majority gutted the EPA's powers to regulate carbon dioxide emissions related to climate change. It did this so radically that historian Heather Cox Richardson argued it could "signal the end of the federal government as we know it." It certainly will make it more difficult for the federal government to regulate climate change, which poses an existential threat to humanity. As Kagan wrote at the time, "Today, the court strips the EPA of the power Congress gave it to respond to the most pressing environmental challenge of our time. The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy. I cannot think of many things more frightening."
She later added that, "Whatever else this Court may know about, it does not have a clue about how to address climate change."
Similarly, scientists and environmental experts believe that the decision in Sackett v. EPA will make it impossible to protect as many as 118 million acres of wetlands, or an amount larger than the entire land area of California. "No environmental rule is safe in the wake of this decision," Patrick Parenteau, an environmental law expert at Vermont Law School, told The Washington Post.
In an ironic twist, the EPA has actually been criticized by many environmental activists groups for not doing enough to protect water quality. An April study in the journal Science of the Total Environment found that the Environmental Protection Agency is failing to monitor almost half of the dozens of PFAS (per- and polyfluoroalkyl substances) that are quietly lurking in many municipal drinking water. These so-called "forever chemicals" are commonly found in water-and-stain-resistant coatings for furniture, leather, carpets and various fabrics. They are linked to health problems including lowered sperm count in male fetuses, difficulties with pregnancies, high blood pressure, liver disease and testicular and kidney cancer, among other diseases.
The study's authors told Salon at the time that although they praised the EPA for taking "a historic step by proposing strong standards for 6 individual PFAS," they also believed that the agency "needs to regulate the full class of PFAS under the Safe Drinking Water Act by adopting a total PFAS drinking water standard. Otherwise, we will be running on a toxic treadmill, trying to regulate 14,000 or more PFAS and never finishing the job."
