On Monday, the Supreme Court heard arguments in a landmark case. The justices from the conservative majority asked a lot of questions that signaled the case might not be as settled as was thought.
The case is about whether or not the EPA can penalize an Idaho couple for building a house on their own land. It is about whether the EPA has the authority to meaningfully monitor and protect streams and wetlands from unfettered development and other pollution.
The 1972 Clean Water Act requires the use of terms such as "navigable waters" and "waters of the United States" to be used. The terms, which were not defined in the original Act, have been argued over and over again. What waters the EPA can regulate is determined by their definition.
According to two former EPA lawyers and other legal experts, the content of yesterday's hearing could bode well for the EPA. The justices drilled down into the definition of "adjacent" waters and seemed skeptical of the anti-regulation plaintiffs' claims that only wetlands directly adjoining each other could be considered "adjacent."
Why did the administrations disagree with you? During the arguments, the judge asked the lawyer if he knew anything about the case. The question was direct and pointed, and it was related to the previous stance of the man.
Even if the case goes the other way, a middle-ground verdict could still hurt the EPA in regulating and protecting water quality. According to Dave Owen, an environmental law professor at the University of California, Hastings, there are a number of bad outcomes.
Betsy Southerland, who was the science and technology director in the EPA's Office of Water, told Earther that she wasn't optimistic about the future of federal water protections. The Supreme Court could opt to restrict the EPA's jurisdiction over isolated wetlands and other small or intermittent waterways if they chose to.
Southerland said that the justices seemed to spend little time discussing the issue of subsurface connection between waterways. A huge number of waterbodies would be left uncovered if the court issued a ruling that requires permanent surface connections for smaller streams and wetlands.
She said that the decision would exclude 20% of the nation's streams and 50% of wetlands. It goes up to 80-90% in parts of the country like the arid West where streams are frequently dry.
The hearings yesterday offered some hope that we are not going to be the worst of the worst. When the future of the nation's water quality is being debated, the Justices' questions are a small comfort. The opinion in the case is not expected to be ready until the summer.
All water is connected. Every drop of rain in the U.S. is a part of the larger movement of water. Watersheds and the water cycle are topics you probably learned about in school.
Some streams and wetlands are isolated but still part of the larger ecological system. Even if you don't care about the bigger picture, the quality of what comes out of your tap is determined by small water bodies.
Courts in the U.S. don't see it that way. The Supreme Court ruled in 2006 that the EPA did not have the authority to regulate isolated wetlands. The Clean Water Act was restricted by Justice Antonin Scalia. The broadest interpretation of the Clean Water Act was supported by a Dissenting Opinion written by Justice John Stevens. Justice Anthony Kennedy had a stand alone opinion. There was no majority opinion on the issue.
Things went off the rails afterwards. The EPA protection to wetlands and small streams was expanded by a rule proposed by the former president. In 2020, Trump reversed that rule. The EPA reverted to their pre-Obama definition of WOTUS in 2021. After the Supreme Court opinion on the proposed rule is released, the agency will further revise its definition. The upcoming EPA policy could be neutered by the SCOTUS decision.
The couple at the center of the Supreme Court case, Mike and Chantell Sackett, are not the kind of people that would be portrayed in a good light. The same anti-government group that argued against the EPA in the 2006 case is representing the Sacketts. The Koch Network and the ExxonMobile Foundation support Pacific Legal.
The money trail is a big clue. Without the EPA in the way, industries that dump waste in headwater streams are free to do so.
EartherEnvironmental Policy
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