The justices agreed in January to look again at a case involving an Idaho couple who previously prevailed at the Supreme Court in their effort to build a home near Priest Lake, one of the state’s largest. The Environmental Protection Agency says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the Clean Water Act.
At issue is how courts should determine what counts as “waters of the United States,” protected by the nearly 50-year-old environmental law. If the court sides with the Idaho property owners, environmental advocates say about half of all wetlands and roughly 60 percent of streams would no longer be federally protected.
“This case is going to be important for wetlands throughout the country, and we have to get it right,” Justice Brett M. Kavanaugh said during the nearly two-hour argument on the Opening Day of the court’s new term.
The case comes after the court’s conservative majority last term restricted the EPA’s authority to curb emissions from power plants.
The Idaho couple, Michael and Chantell Sackett, are represented by the conservative Pacific Legal Foundation and backed by a long list of business organizations, home builders and agricultural groups that say the government’s regulations are muddled, time-consuming and costly to follow.
Justices Neil M. Gorsuch and Samuel A. Alito Jr. expressed the most skepticism about how broadly the government defines wetlands subject to regulation, offering pointed questions for the government’s lawyer, Brian H. Fletcher.
Gorsuch asked, “How does any reasonable person know whether or not their land” is covered? Is the property subject to regulation if it is located three miles or two miles from waters subject to federal jurisdiction, he pressed Fletcher. “So, if the federal government doesn’t know, how is a person subject to criminal time in federal prison supposed to know?”
Justice Ketanji Brown Jackson, sitting for her first oral argument, was an active questioner and pushed back against suggestions that the regulations are unfair to property owners or would likely result in criminal penalties.
“Shouldn’t they have gathered information prior to purchasing?” Jackson asked the Sacketts’ attorney.
Fifteen years ago, the couple obtained a local building permit to begin construction on their land about 300 feet from the lake, a plot bounded on two sides by roads and separated by a row of lakefront homes. The EPAgency put those plans on hold.
The agency said the property contains sensitive wetlands, which are among the “waters of the United States” and subject to permitting requirements. The government threatened fines of more than $40,000 per day if the couple did not stop construction. The couple went to court to block the EPA order and now wants the justices to narrow the definition of “waters of the United States” so that their land is not covered by the Clean Water Act.
The Biden administration and environmental groups say narrowing the reach of the law would undermine the government’s ability to protect wetlands that are separated from a river, for instance, by a small dune but still affect a river’s chemical, physical and biological integrity.
In 2012, the justices unanimously sided with the Sacketts, allowing them to immediately challenge the EPA order before the agency took enforcement action. Alito noted in a concurring opinion that the scope of the law is “notoriously unclear” and expressed sympathy for the homeowners.
“Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”
The justices are now reviewing a 2021 ruling from the U.S. Court of Appeals for the 9th Circuit, which sided with the EPA. The appeals court said the record shows that water from the wetlands, which filter out pollutants, makes its way into the lake via a tributary and creek. The opinion quotes an EPA memo, which found the wetlands “especially important in maintaining the high quality of Priest Lake’s water, fish, and wildlife.”
A key question for the justices is how to determine how far from the water’s edge the Clean Water Act applies. The court’s three liberal justices along with Kavanaugh emphasized in their questions Monday that Congress clearly intended to regulate wetlands “adjacent” to regulated waters.
Kavanaugh noted in questioning the Sacketts’ attorney that presidents in both political parties had interpreted the law to cover neighboring wetlands.
“Why did seven straight administrations not agree with you?” he asked.
The court failed to reach consensus in a 2006 case Rapanos v. United States. The 9th Circuit relied on the test put forward by retired Justice Anthony M. Kennedy, who provided the deciding vote in that case and said the wetland must have a “significant nexus” to regulated waters.
The Sacketts’ attorney Damien M. Schiff asked the court to embrace the narrow interpretation proposed by the late conservative Justice Antonin Scalia and joined then by three other justices. Scalia’s definition limits regulation to wetlands with a direct “continuous surface connection” to “navigable waters.”
Paul Clement, a former solicitor general, said during a Heritage Foundation term preview last week that when the justices agree to take a case for the second time the court is inclined to “finish the job that it started the first time around.”
Because “a lot of the current justices think pretty highly of Scalia” and there was previously “some sympathy for the homeowner, this sets up pretty well for the Sacketts.”
The case is Sackett v. Environmental Protection Agency.
