This morning the Supreme Court of the United States heard from the Sacketts of Idaho for the second time. For sixteen years the Sacketts have been in the Federal Courts in connection with their attempt to build a house on a lot that is or isn't subject to jurisdiction under the Federal Clean Water Act. As Justice Kavanaugh pointed out early in the oral argument, the Sacketts' case is going to have important implications from coast to coast.
At issue this time is the viability of Justice Kennedy's "significant nexus" test for determining the reach of the Clean Water Act to wetlands. That test didn't command the support of a majority of the Supreme Court sixteen years ago and now three of the Justices who rejected that test then (including the Chief Justice) have been joined by Conservative Justices Gorsuch, Kavanaugh and Coney Barrett. That's why most observers, including me, expected this Court to reconsider and reject the "significant nexus" test.
Many suggested that this would be another case in which the Conservative super majority would invoke the major questions doctrine to upend EPA's interpretation of the law. I thought the majority would merely adopt late Justice Scalia's "continuous surface connection to bodies that are 'waters of the United States' in their own right" test that didn't carry the day sixteen years ago.
I still think that's the most likely outcome. The three Justices that supported that test sixteen years ago need only one of the three more recent Conservatives to join them. But it is less clear to me now than it was before oral argument that the late Justice Scalia will carry the day.
Justice Kavanaugh twice asked the Sacketts' lawyer about the fact that in every administration since 1977 EPA had read the Clean Water Act more broadly than Justice Scalia and Congress had done nothing to rein it in.
Several other Justices, on the left and the right, had questions about Congress's intentions in 1972, when the Clean Water Act was enacted over the President's veto, and in 1977, when it amended the Act.
Of course what Congress intended a half century ago would be irrelevant if Congress had been willing to clarify its intention over the past thirty years while the controversy over that intention has been captivating the courts.
One of the most surprising exchanges of the morning was when Justice Kagan suggested a distinction between "subsurface water" and "groundwater" that doesn't exist anywhere in environmental law. If anyone needed any further evidence that we might not want Judges writing environmental laws, this would seem to fit the bill.
But while there's been plenty of criticism of what people expect the Supreme Court majority to do in this case, there is still very little criticism of Congress for sitting on its hands as the longest running controversy in environmental law continues.
Under an opinion written by former Justice Anthony Kennedy in 2006, regulators can block development on properties far from waterways as long as they prove a significant connection to the waterways. Kennedy said the wetlands must "significantly affect the chemical, physical, and biological integrity" of nearby navigable waters to come under the Clean Water Act. No other justice joined Kennedy's writing, and four conservatives wrote that they would allow regulation only if there was a continuous surface connection from the wetlands to the lake, river or stream. There is no such connection on the Sackett's property.
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