The Supreme Court’s historical controversies and recent conservative shift have raised concerns about its impact on environmental regulations, particularly related to dismantling environmental laws.
The 2012 Sackett v. EPA case brought attention to wetland protection under the Clean Water Act (CWA) and attracted support from various groups interested in environmental deregulation.
The Supreme Court’s landmark ruling in 2023 in favor of the Sacketts in Sackett v. EPA redefined the scope of the Clean Water Act and limited Congress’s ability to protect wetlands.
The Court’s shift towards an activist and authoritarian approach has broad implications for environmental protection and tribal sovereignty.
Environmental protection is a paramount concern in the United States, with efforts focused on identifying, monitoring, and reducing air contaminants and water pollutants. This article delves into the recent developments in environmental regulation, with particular emphasis on the 2023 Supreme Court decision in Sackett v. EPA II and its potential implications for wetland protection under the Clean Water Act (CWA).
The Clean Water Act and Waters of the United States
Since 1972, the Clean Water Act has played an essential role in safeguarding the nation’s diverse range of aquatic environments from pollution, preserving them for fishing, swimming, wildlife, and as sources of drinking water for millions. Since its inception, the act has faced challenges from polluters and developers seeking to restrict its regulatory ambit. Their strategy involves honing in on a specific, yet crucial, segment of language within the law—five simple words that bear significant legal implications: “waters of the United States.”
The Supreme Court’s decision in Sackett v. EPA II determines the future efficacy of the Clean Water Act by deciding whether wetlands are – or aren’t – deserving of federal protection, which has far-reaching consequences for environmental management.
Supreme Court’s Controversial Shift: Impact on Environmental Regulation
The Supreme Court’s role in shaping environmental regulations has evolved over time. Since the 1980s, the Court has shifted towards conservative jurisprudence as a result of the Republican Party’s hard-right turn and the influence of the Federalist Society, a powerful conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution.
According to Pomona College Associate Professor of Politics and Conservative Legal Movement Historian Amanda Hollis-Brusky, the Federalist Society “has a de facto monopoly on right of center legal talent.” Since its founding in the Reagan era, the Federalist Society has exerted its influence to put its people into the Department of Justice, into the Office of Legal Counsel, into clerkships, and into lower federal court appointments. However, in 2016, then-presidential candidate Donald Trump took the unprecedented step of releasing a shortlist of potential Supreme Court judge nominees approved by the Federalist Society to fill vacancies on the Court.
As a result, not only has the current Supreme Court gained notoriety for being the most conservative and activist in generations, the Court’s credibility is waning: Public trust in the nine justices has reached an all-time low, partly due to concerns over corruption charges involving Justice Clarence Thomas and Justice Alito. Moreover, the contentious nomination processes of Justices Amy Coney Barrett and Brett Kavanaugh, orchestrated by Senate minority leader Mitch McConnell, have added to public skepticism.
This new iteration of the Supreme Court has been particularly interested in dismantling environmental regulations. Notably, they have taken aim at laws such as the Clean Air and Water Acts, which were originally signed into law by President Richard Nixon. The justices seem determined to curtail the Environmental Protection Agency’s (EPA) authority and hinder its ability to carry out its mandate to combat air and water pollution. This approach traces back to a quote from Republican strategist Grover Norquist, who expressed a desire to drastically reduce the size of the government.
My goal is to cut government in half in twenty-five years, to get it down to the size where we can drown it in the bathtub.
The Court’s evolving preference for neoliberal jurisprudence, as described by Wendy Brown,1,2 is evident in their reinterpretation of the First Amendment. Rather than serving as a safeguard against censorship or repression, the First Amendment is viewed as a framework for broad deregulation — an approach with roots in Friedrich Hayek’s Austrian School of Economics. While deregulation has always been a component of this economic school of thought, it has never before been so clearly aligned with the Supreme Court’s thinking.
Recent rulings, particularly those of The Roberts Court, have had significant implications for environmental protection. The Court’s decisions in 2022 and 2023 have effectively weakened the powers of the Clean Air and Water Acts, along with the National Environmental Policy Act (NEPA), which was enacted as part of a broader federal law to safeguard the environment.
Among these decisions, Haaland v. Brackeen stands out as potentially having far-reaching consequences for the oil and gas industry. It could impact water usage for high-quality water demands and the disposal of massive amounts of waste, in addition to raising concerns about mineral expropriation on tribal lands.
The Supreme Court’s evolution from its historical controversies to its present-day focus on deregulation and environmental regulation raises significant concerns. The Court’s decisions have the potential to shape the nation’s environmental policies and impact various industries, particularly oil and gas exploration. As the Court shifts towards increasingly conservative jurisprudence under the influence of the Federalist Society and its political proponents, the ramifications of its rulings warrant careful attention and public scrutiny.
Contrasting Views on Identifying Waters of the United States
In 2006, the Supreme Court case of Rapanos v. United States played a pivotal role in shaping the definition of Waters of the United States (WOTUS) under the Clean Water Act. The case centered around contrasting viewpoints presented by Justices Scalia and Kennedy, each offering distinct criteria for identifying WOTUS.
Justice Scalia’s Approach
Justice Scalia argued that WOTUS encompassed “navigable waters,” which referred to rivers, lakes, or water bodies capable of accommodating boats. Additionally, Scalia included regularly flowing tributaries connected to navigable waters and wetlands with a “continuous surface connection” to a WOTUS.
Scalia’s two-step test for defining WOTUS involved the following considerations:
- The adjacent channel should contain a “water of the United States,” which refers to a relatively permanent body of water linked to traditional interstate navigable waters.
- The wetland must exhibit a continuous surface connection to the adjacent channel, making it challenging to ascertain the boundary between water and wetland.
Scalia’s approach, which focused on a strict interpretation of “navigable waters” and required a visible and continuous surface connection between wetlands and traditional navigable waters, has been favored by some industry groups. This interpretation has been seen as limiting the scope of protected waters, potentially reducing regulatory oversight and permitting requirements for certain water bodies. Consequently, it has been praised by proponents of reduced federal intervention in environmental regulations.
In their amicus brief, the American Petroleum Institute, Association of Oil Pipelines, and American Gas Association cited Scalia’s definition as appropriate, emphasizing the need for clarity and reduced uncertainty in defining WOTUS.
Justice Kennedy’s Perspective
Justice Kennedy concurred with Justice Scalia’s view on the significance of a connection to another protected body of water. However, Kennedy emphasized that this connection need not be visibly continuous and surficial. Instead, it could be assessed based on the potential impact on the physical, chemical, or biological health of the second body of water.
Kennedy’s approach involved asking a crucial question: Does a given wetland share a significant nexus with another protected body of water? If the answer is yes, regardless of whether a boat can easily navigate between them, both deserve the same level of protection.
Kennedy’s approach, emphasizing the “significant nexus” between protected water bodies, has been seen as broadening the scope of protected waters. This perspective considers the potential ecological interconnectivity and impact of water bodies on each other, even if there is no continuous surface connection. As a result, this approach has been praised by environmental advocates who seek to expand federal protections for water resources.
The Navigable Waters Protection Rule (NWPR) of 2020
In 2020, the Trump EPA and Corps of Engineers issued the Navigable Waters Protection Rule (NWPR), aligning with Justice Scalia’s definition of navigable waters. The rule specifically considered perennial and intermittent tributaries that contribute surface water flow as part of the WOTUS classification. However, the rule was ultimately vacated by two district courts and replaced in the Code of Federal Regulations by the 2023 rule.
The Impact on Federal Regulatory Jurisdiction
The contrasting viewpoints presented by Justices Scalia and Kennedy in the Rapanos v. United States case have had a significant impact on environmental regulations, particularly concerning the identification and protection of Waters of the United States (WOTUS) under the Clean Water Act. The two divergent approaches have also led to uncertainty and complexities in defining the scope of federal jurisdiction over water bodies, which has directly affected regulatory practices and set the stage for future rulings in Sackett v. EPA and Sackett v. EPA II.
The Sackett v. EPA Case: Wetland Protection Under the Clean Water Act
In 2007, Michael and Chantell Sackett sought to develop property near Idaho’s Priest Lake. To prepare the lot for construction, they started filling the lot with dirt for construction. But the Environmental Protection Agency (EPA) informed them that their property had wetlands, and putting dirt in those areas violated the Clean Water Act (CWA), which prohibits releasing pollutants into “the waters of the United States” without the necessary permit.
The EPA gave the Sacketts two options: risk facing civil penalties of more than $40,000 per day or restore the site to its original condition. The EPA considered the wetlands on their property as “waters of the United States” because they were close to a ditch that fed into a creek, which, in turn, connected to Priest Lake—a lake that falls under the jurisdiction of the CWA.
The issue at hand was whether the wetland on their property fell under the Environmental Protection Agency’s (EPA) jurisdiction as “water of the United States” (WOTUS), and therefore subject to regulation, kicking off a 16-year legal battle that ultimately reached the Supreme Court twice in Sackett v. EPA and Sackett v. EPA II. The determination of WOTUS status was crucial, as it would subject the wetland to EPA regulations, significantly impacting its future.
This contentious case attracted the attention of various interest groups, from real estate developers and industrial lobbyists to oil and gas corporations, who have sought to limit the regulatory scope of the CWA. These special interests knew that if they could get their day in court with this iteration of the Supreme Court they could declaw federal regulatory oversight over wetlands, clearing the road for unfettered construction and resource extraction in and around sensitive aquatic ecosystems all over the country.
The Sackett Case and Its Backers
After years of legal disputes, the Sackett’s case once again made its way to the Supreme Court in 2022. Notably, it garnered support from influential entities with vested interests in environmental deregulation, including large real estate developers, agricultural lobbyists, the U.S. Chamber of Commerce, the American Exploration and Mining Association, and mining multinational Freeport McMoran,3,4 among others. The case also attracted backing from the American Petroleum Institute and other players in the oil and gas industry. Among the supporters of the Sacketts was the Claremont Institute, an influential organization committed to restoring textualist principles with connections to Justice Samuel Alito, who has delivered speeches and received awards from the institute, raising concerns about Alito’s objectivity in cases related to the EPA and Clean Power Plan.
The crux of the matter in Sackett v. EPA II was determining what qualifies as “Waters Of The United States” (WOTUS). This designation dictates whether specific water bodies receive protection under the Clean Water Act, which was passed in 1972 to establish “the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.” While the court’s understanding of the issue of hydrological connectivity seems limited, the critical question is whether the impact of wetlands on navigable waters is relatively permanent (the Scalia view) or whether there is a significant nexus with navigable waters necessitating CWA protections (the Kennedy view).
SCOTUS Decision on Wetland Protection
In May 2023, the Supreme Court rendered a landmark 5-4 decision in Sackett v. EPA II in favor of the Sacketts. The majority, composed of Chief Justice Roberts, Justices Alito, Thomas, Barrett, and Gorsuch, the son of former EPA Administrator Anne Gorsuch, concluded that for wetlands to be protected under the Clean Water Act, they must have a “continuous surface connection” to WOTUS. This ruling effectively redefined the scope of the Clean Water Act and limited Congress’s ability to protect wetlands.
Justice Kagan voiced strong criticism of the majority’s decision, expressing concerns about the Court unilaterally shaping environmental policy. The ruling raises broader implications for environmental protection and tribal sovereignty, as evidenced by related cases like McGirt v. Oklahoma.
Implications for Environmental Regulation
The SCOTUS decision in Sackett vs. EPA II holds significant implications for wetland protection and the future trajectory of environmental regulation in the United States. As the Supreme Court’s rulings have taken on an increasingly activist and, arguably, authoritarian tone, the Court’s role in shaping national environmental policy becomes increasingly evident. This shift has been exacerbated by Congress’s failure to address critical issues, leaving the Court to intervene in matters that should fall under legislative purview.
The contrasting approaches of Justices Scalia and Kennedy have resulted in uncertainty and intricacies in delineating federal jurisdiction over water bodies. If the Scalia approach prevails, the sole criterion for defining Waters of the United States (WOTUS) would hinge on the narrowest interpretation of navigability. Moreover, only pollutants that directly threaten commercial navigation would fall under federal concern, effectively eroding the safeguards provided by the Clean Water Act. Consequently, the Act’s vital role in protecting the nation’s diverse aquatic environments from pollution could be undermined.
The Supreme Court’s Pass for Polluters
Within the oil, gas, and coal industries, polluters view the current climate as an opportunity to shape environmental regulations and concepts like “land” and how it’s defined. The debate over “pore space” at the state level, such as in North Dakota’s supreme court, may also eventually reach the federal level. Meanwhile, the Court’s tribal sovereignty rulings have left some concerned about the potential deference to corporations, particularly within the fossil fuel sector, including key issues such as sourcing water for the industry’s insatiable demand, disposing of hazardous waste, greenwashing its image under the label of “responsibly sourced gas,” and the impact of petrochemical and carbon capture and storage (CCS) development on Waters of the United States, air quality, and overall societal and ecosystem health.
The practical consequences of the Supreme Court’s decisions on fossil fuel water, waste, and landscape alteration demands are worrisome. Frontline communities, nonprofit organizations, and allies must understand the nuances of this critical moment and recognize the Court’s role in shaping environmental regulations and the privatization of natural resources. Balancing the short- and medium-term privatization with long-term health and environmental impacts requires careful consideration and vigilance.
I am not a scientist or an economist, and it is not my place to say whether these regulations represent good or bad public policy. But I will say that a policy of this importance should have been decided by elected representatives of the people in accordance with the Constitution and not by unelected members of the judiciary and bureaucrats. But that is the system we have today, and it is a big crack in our constitutional structure.
The Take Away
The SCOTUS decision in Sackett v. EPA II has significant implications for wetland protection and the future trajectory of environmental regulation in the United States. As the Supreme Court’s rulings have taken on an increasingly activist and, arguably, authoritarian tone, the Court’s role in shaping national environmental policy becomes increasingly evident in cases like these, as their decisions carry the potential to influence the nation’s ecological well-being for years to come.
 Wendy Brown, “Politics Must Be Dethroned,” in In The Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West, (New York: Columbia University Press, 2019), 84.
 Wendy Brown, “Speaking Wedding Cakes and Praying Pregnancy Centers: Religious Liberty and Free Speech in Neoliberal Jurisprudence,” in In The Ruins of Neoliberalism: The Rise of Antidemocratic Politics in the West, (New York: Columbia University Press, 2019), 124.
 In Freeport-McMoran’s 2022 SEC 10-K filings, the company noted that, “Certain FCX affiliates were named as defendants, in 13 cases filed in Louisiana state courts by six south Louisiana parishes (Cameron, Jefferson, Plaquemines, St. Bernard, St. John the Baptist and Vermilion), alleging that certain oil and gas exploration and production operations and sulfur mining and production operations in coastal Louisiana contaminated and damaged coastal wetlands and caused significant land loss along the Louisiana coast. The state of Louisiana, through the Attorney General and separately through the Louisiana Department of Natural Resources, intervened in the litigation in support of the parishes’ claims.”
 In their amicus brief supporting the Sacketts, Freeport-McMoran, which primarily operates mines in the arid southwest, asserted that, “the frequency, magnitude, and duration of flows in ephemeral features in the arid Southwest do not generally provide the kind of hydrologic ‘connectivity’ to downstream traditional navigable waters as do channels elsewhere in the country, and thus do not have the same effects on downstream jurisdictional waters. To the contrary…arid ephemeral drainages ‘are unlikely to be hydrologically connected to downstream Traditionally Navigable Waters.’”
 Anne Gorsuch’s tenure “was marked by sharp budget cuts, rifts with career EPA employees, a steep decline in cases filed against polluters and a scandal over the mismanagement of the Superfund cleanup program that ultimately led to her resignation in 1983.”
Where to Learn More
Topics in This Article:
Join the Conversation
Support Our Work
FracTracker Alliance helps communicate the risks of oil and gas and petrochemical development to advance just energy alternatives that protect public health, natural resources, and the climate.
By contributing to FracTracker, you are helping to make tangible changes, such as decreasing the number of oil and gas wells in the US, protecting the public from toxic and radioactive chemicals, and stopping petrochemical expansion into vulnerable communities.
Your donations help fund the sourcing and analysis of new data so that we can keep you informed and continually update our resources.
Please donate to FracTracker today as a way to advocate for clean water, clean air, and healthy communities.