Sackett and the Dangers of a Latest ‘Clear-Statement Rule’
The Supreme Court decision in Sackett v. EPA might be bad for the nation’s wetlands. It’s just as bad for democracy.
The Supreme Court decision in Sackett v. EPA limits the Environmental Protection Agency’s ability to defend a big portion of the nation’s wetlands and waterways from pollution. The choice strips key environmental protections from the Clean Water Act by narrowly defining which bodies of water could be regulated under the Act, making it crucial water-related case in a long time. But this decision is about greater than wetlands and water.
As recounted here by Richard Frank, the Sacketts sued the EPA in 2008 after they sought to construct a house in Idaho near Priest Lake and the agency said they needed a permit under the Clean Water Act since the wetlands were federally protected. The couple argued that if a wetland doesn’t feature “a continuous surface connection” to a navigable waterway, there isn’t a such federal requirement. In the bulk opinion, Justice Samuel Alito writes that the Clean Water Act “extends to only those wetlands with a continuous surface connection to bodies which might be ‘waters of the USA’ in their very own right,’ so that they’re ‘indistinguishable’ from those waters.” The justices unanimously agreed on the judgment that the Sacketts mustn’t have been subject to EPA authority, but there was stark disagreement over the bulk’s reasoning for easy methods to define the waters of the USA. The concurring opinions say so much about where the court is headed on environmental rulemaking and beyond. It shows the conservative majority is intent on finding recent ways to override, somewhat than defer, to agency authority usually.
I put some questions on the importance of the choice to the UCLA Emmett Institute’s Cara Horowitz and Julia Stein.
Q: What does the Sackett v. EPA decision mean for enforcement of the Clean Water Act?
Cara Horowitz: The Court bends over backwards to shrink the reach of the Clean Water Act significantly, in order that it’ll now not protect many wetlands and maybe other waters which were a core a part of the statutory scheme for a lot of a long time. This can make it much harder for the federal government to guard water quality—and surely that is the Court’s goal. The opinion is evident in its aim to shift more power to the 50 states to regulate water pollution, with the likely effect of making “red state” and “blue state” approaches to water protection.
Q: This decision follows an analogous curtailment of EPA authority from last term within the West Virginia v. EPA case, having to do with regulating air pollution. Taken together, what’s the longer term of environmental regulations?
Julia Stein: One of the crucial notable features of this decision was the Court’s articulation of what appears to be a recent “clear-statement rule”—much like the “major questions” doctrine we’ve seen emerge over the past few terms—that requires Congress to “enact exceedingly clear language” in circumstances involving the regulation of personal property. Here, the Court appears to be adding to an inventory of circumstances under which it feels entitled to second-guess Congress’ delegation of its authority to executive branch agencies. This builds on the Court’s recent pattern of ghosting Chevron deference, which the Court has historically applied to questions involving exercise of agency authority just like the one here.
JS: In other words, this newly-articulated clear-statement rule removes this case from the Chevron framework entirely, creating a possibility for the Court to override agency judgment somewhat than deferring to it. Taken along with West Virginia v. EPA, this decision seems to portend increasingly serious constraints on federal environmental regulation; agency rules seem likely to seek out themselves within the danger zone in the event that they don’t cleave rigorously to the express letter of a statute—and sometimes even once they do.
Also notable to me was Justice Thomas’ concurrence railing against the applying of, in his view, an overly-broad interpretation of the Commerce Clause to permit intrastate regulation by federal agencies, particularly within the environmental law space. While I don’t think his view is shared by even a majority of the conservative justices, coming because it does on the heels of the choice in National Pork Producers Council, which examined the extent of application of the dormant Commerce Clause, his concurrence does signal an ongoing interest by not less than a portion of the Court in revisiting longstanding Commerce Clause principles.
CH: Yes to what Julia said (and I’ll also note how much I just like the phrase “ghosting Chevron”). This decision is consistent with—and expands—the final trend of this Court to shift power to itself on the expense of expert agencies. Folks sometimes complain that agencies are unelected bureaucrats who mustn’t be making vital policy decisions, but even for those who agree with that critique (which I don’t), the Supreme Court is each significantly less politically accountable, and significantly less expert, than agencies. So, this trend is prone to end in less well-informed outcomes that accord less well with democratic norms and preferences.
Q: Do you think that the court’s conservative majority is effectively rolling back the authority of Congress in the case of writing laws that’s the idea for vital environmental regulations?
JS: The clear-statement rule articulated by this opinion is sort of stunning, since it doesn’t appear to stop at curtailing executive branch agency authority. Unlike the “major questions” doctrine, which is basically about how clear Congress must be when it delegates lawmaking authority to agencies, this recent clear-statement rule says Congress must be extra-clear if it desires to legislate in any respect in ways that might impact private property, including about “land and water use,” which the Court says are at “the core of traditional state authority.” This takes plenty of settled ideas about our federalist system and turns them on their head, chief amongst them the concept Congress, because the body with the closest ties to the electorate, must have primary lawmaking authority, to be curtailed by the Court only when exercised in violation of Constitutional principles.
As best I can tell, the bulk appears to be conferring upon itself the only authority to find out whether or not Congress was, in its view, clear enough and, if not, then the Court gets to make your mind up what the law must be. Sackett itself provides a reasonably grim picture of how this may play out because, as conservative and liberal justices alike indicate within the “concurrences,” Congress actually was somewhat clear within the Clean Water Act, and it’s Alito’s opinion that’s having to do a variety of contorting to inject vagueness where there doesn’t look like any within the statutory text. But when the Court can maneuver its method to manufactured ambiguity here, after which use that to override Congressional judgment, it’s hard to see where the Court won’t have the opportunity to try this—if it desires to.
Q: Speaking of the concurrences, the three liberals joined by Justice Kavanaugh disagreed with the bulk’s reasoning. What’s most notable about Justice Kagan’s sharply worded opinion?
CH: Justice Kagan calls out what she sees as her colleagues’ deceptive use of the so-called “clear statement” rule to substitute their very own preferences for those of Congress, even where Congress has been clear in its direction to agencies. She writes, “Clear statement rules operate (once they operate) to resolve problems of ambiguity and vagueness. And no such problems are evident here. [This] congressional judgment is as clear as clear could be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The bulk concludes otherwise since it is using its thumb to not resolve ambiguity or make clear vagueness, but as a substitute to “correct” breadth.” She also rightfully emphasizes that “the Court’s appointment of itself because the national decision-maker on environmental policy” will make it harder to maintain our nation’s waters clean.
JS: I believe it’s also price mentioning that Justice Kavanaugh—a conservative member of the Court—wrote individually (joined by the three liberal justices) to criticize Justice Alito’s misreading of the Clean Water Act’s reach. He did so primarily to indicate that “the Court’s recent test will leave some long-regulated adjoining wetlands now not covered by the Clean Water Act,” but in suggesting he’d “follow the text” of the Clean Water Act in determining which wetlands are protected, he echoes Justice Kagan’s conclusion that the Court is stepping in to rewrite a law that’s, on its face, clear, but just means something different than the Court wants it to.
Q: West Virginia v. EPA had a connection to the worldwide climate crisis. Sackett would look like a narrower case since it’s about protecting smaller waterways and wetlands. Why might or not it’s unsuitable to underestimate the reach of this decision?
CH: I’ll beat back a bit on the characterization of this decision as affecting only “smaller” waterways and wetlands. We don’t know yet exactly which waters and wetlands this strips of Clean Water Act jurisdiction, nevertheless it’s actually not only small ones. Many very large wetlands might be affected, with cumulatively hugely vital consequences—some estimate that almost half the country’s wetland areas might be left uncovered. And there are a lot of large, vital waterways within the West, for instance, that don’t fit what appears to be the Court’s conception of everlasting, constantly flowing rivers and streams, since the West’s hydrology is usually seasonal. Consider the L.A. River, for instance, or of Tulare Lake, which only periodically appears after heavy snowfalls, because it is doing within the California central valley straight away. This decision brings the status of those sorts of waterways into query, regardless that they’re actually significant hydrologically, commercially, culturally, and otherwise.
JS: Along with the intense environmental consequences we’ve discussed, this decision portends some choppy waters ahead for the standard balance of powers between the three branches of our government. The reemergence of the “major questions” doctrine—and the long decline of Chevron deference before that—already signaled the Court’s desire to wrest power from the executive state. But now the Court seems to have set its sights directly on Congress, too.