Supreme Court rules against EPA in dispute over regulating wetlands

(snip)

The majority thus alters—more pre-
cisely, narrows the scope of—the statute Congress drafted. And make no mistake: Congress wrote the statute it
meant to. The Clean Water Act was a landmark piece of
environmental legislation, designed to address a problem of
“crisis proportions.

(snip)

Today’s majority, though, believes Congress went too far.
In the majority’s view, the Act imposes unjustifiably “crush-
ing consequences” for violations of its terms. Ante, at 3.
And many of those violations, it thinks, are of no real con-
cern, arising from “mundane” land-use conduct “like mov-
ing dirt.” Ante, at 13. Congress, the majority scolds, has
unleashed the EPA to regulate “swimming pools[ ] and pud-
dles,” wreaking untold havoc on “a staggering array of land-
owners.” Ante, at 1, 13. Surely something has to be done;
and who else to do it but this Court? It must rescue prop-
erty owners from Congress’s too-ambitious program of pol-
lution control.

So the majority shelves the usual rules of interpreta-
tion—reading the text, determining what the words used
there mean, and applying that ordinary understanding
4 SACKETT v. EPA
K AGAN, J., concurring in judgment
even if it conflicts with judges’ policy preferences.

If the justices have issue with enforcement, then they need to spell that out. And that is a legislative fix, not a judicial one. In other words, it is political and they are taking it upon themselves to legislate from the bench. Once again the SCOTUS took precedent, tossed it out the window, and gave in to political hyperbole.

Well what this exposed was that the law needs to be updated to better define what a "wetland" is.

So on one hand, they are saying that they want that type of stuff spelled out in the actual law and not "interpreted" by an agency, but on the other hand, they are also attributing the "interpretations" to what they believe are eco-fanatics going overboard.

And people wonder why legislation is thousands of pages long.

A court may, on occasion, apply a clear-statement rule to
deal with statutory vagueness or ambiguity. But a court
may not rewrite Congress’s plain instructions because they
go further than preferred. That is what the majority does
today in finding that the Clean Water Act excludes many
wetlands (clearly) “adjacent” to covered waters.

And still more fundamentally, why ever have a thumb on
the scale against the Clean Water Act’s protections? The
majority first invokes federalism. See ante, at 23–24. But
as JUSTICE KAVANAUGH observes, “the Federal Govern-
ment has long regulated the waters of the United States,
including adjacent wetlands.” Post, at 11. The majority
next raises the specter of criminal penalties for “indetermi-
nate” conduct. See ante, at 24–25. But there is no peculiar
indeterminacy in saying—as regulators have said for nearly
a half century—that a wetland is covered both when it
touches a covered water and when it is separated by only a
dike, berm, dune, or similar barrier. (That standard is in
fact more definite than a host of criminal laws I could
name.) Today’s pop-up clear-statement rule is explicable
only as a reflexive response to Congress’s enactment of an
ambitious scheme of environmental regulation.

There, the majority’s non-tex-
tualism barred the EPA from addressing climate change by
curbing power plant emissions in the most effective way.
Here, that method prevents the EPA from keeping our
country’s waters clean by regulating adjacent wetlands.
The vice in both instances is the same: the Court’s appoint-
ment of itself as the national decision-maker on environ-
mental policy.

So I’ll conclude, sadly, by repeating what I wrote last
year, with the replacement of only a single word. “[T]he
Court substitutes its own ideas about policymaking for Con-
gress’s. The Court will not allow the Clean [Water] Act to
work as Congress instructed. The Court, rather than Con-
gress, will decide how much regulation is too much.” Id., at
___ (slip op., at 32). Because that is not how I think our
Government should work—more, because it is not how the
Constitution thinks our Government should work—I re-
spectfully concur in the judgment only.

In a unanimous opinion for the court almost 40 years ago, Justice Byron White explained why. While acknowledging that “on a purely linguistic level, it may appear unreasonable to classify ‘lands’ wet or otherwise as ‘waters,’” the court said “such a simplistic response … does justice neither to the problem faced by the [government] nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”

Justice Samuel A. Alito Jr.’s opinion in Sackett, however, embraces the very “simplistic response” that the court rightly criticized in 1985. Relying on a dictionary definition of “waters” and ignoring the Clean Water Act’s purpose, the court’s conservative majority has adopted a radically truncated view of the reach of the law’s restriction on water pollution. Under the court’s new view, pollution requires a permit only if it is discharged into waters that are “relatively permanent, standing or continuously flowing bodies of water, ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams … oceans, rivers, and lakes.’” And “wetlands” are covered only if they are “indistinguishably part” of those narrowly defined covered waters.

This is exactly what Scalia wanted to accomplish in 2006 when the Clean Water Act was last before the court. He managed to cobble together three other votes to gut the law but fell one justice short. Now, with six conservative justices — three of whom are largely modeled in Scalia’s image — Alito was able to accomplish what Scalia never could by securing the necessary fifth vote.

The impact of the majority ruling is potentially enormous. It could lead to the removal of millions of miles of streams and millions of acres of wetlands from the law’s direct protection. Basic protections necessary to ensure clean, healthy water for human consumption and enjoyment will be lost. As highlighted by Justice Elena Kagan’s separate opinion, the court’s opinion “prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands.”

Conservative Brett Kavanaugh and the court’s three liberal justices charged that their colleagues had rewritten that law.

Kavanaugh wrote that the court’s “new and overly narrow test may leave long-regulated and long-accepted-to-be regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.”

Justice Elena Kagan wrote that the majority’s rewriting of the act was “an effort to cabin the anti-pollution actions Congress thought appropriate.” Kagan referenced last year’s decision limiting the regulation of greenhouse gas emissions under the Clean Air Act.

In both cases, she noted, the court had appointed “itself as the national decision-maker on environmental policy.” Kagan was joined in what she wrote by her liberal colleagues Sonia Sotomayor and Ketanji Brown Jackson.