A Supreme Court Watershed – WSJ

Michael and

Chantell Sackett

have been trying to build a home on a lot near Priest Lake, Idaho, for 15 years. Soon after workers started moving dirt, Environmental Protection Agency and U.S. Army Corps of Engineers officials swooped in and claimed their property likely contained wetlands subject to federal regulation under the Clean Water Act.

This was a head-scratcher. Their land contains no body of water, and the law authorizes EPA to regulate only “navigable waters” in interstate commerce. EPA nonetheless ordered construction work halted and threatened huge penalties if the Sacketts didn’t obtain a federal permit, which typically requires more than two years and $250,000 in consulting costs.

EPA’s reasoning went like this: The Sacketts’ lot was connected to a wetland though it was separated by a 30-foot paved road, and that wetland was connected to a man-made ditch that was connected to a non-navigable creek that was connected to Priest Lake, which was navigable. No wonder the Sacketts were dismayed.

But part of the blame lies with the Supreme Court. A majority in Rapanos (2006) couldn’t agree on how to delimit EPA’s authority over wetlands. Four Justices said the Clean Water Act’s scope extended to “only those relatively permanent, standing or continuously flowing bodies of water” such as oceans, rivers and lakes. Wetlands, they argued, could be regulated only insofar they were directly adjacent to a navigable water.

But Justice

Anthony Kennedy

disagreed and wrote in an opinion concurring only with the judgment that EPA could regulate wetlands as long as they had a “significant nexus” to, or significantly affected the physical, chemical, and biological integrity of, “waters more readily understood as ‘navigable.’”

There’s no limiting principle in Justice Kennedy’s opinion, which is no doubt why the EPA swam with it. EPA says it can regulate any land, including dry lots like the Sacketts’, with a “significant nexus” to a navigable water no matter how tenuous this connection is. Prairie potholes, sand-flats and dry drainage ditches are all fair game.

As Chief Justice

John Roberts

presciently warned in a concurrence, “[l]ower courts and regulated entities” would lack guidance “on precisely how to read Congress’ limits on the reach of the Clean Water Act” and would be left “to feel their way on a case-by-case basis.” Rule-makings by the

Obama

and Trump Administrations to distill EPA authority have been marooned by lawsuits.

Businesses such as farmers, contractors and energy companies can’t know for certain if the EPA will claim their land is a “wetland.” They must spend time and resources to obtain a federal permit, which may limit the use of their property, or risk getting fined. This regulatory uncertainty undermines legal due process, as well as investment.

As in West Virginia v. EPA last term, an agency is rewriting the law and arrogating to itself sweeping power over broad swaths of the economy. How to regulate non-navigable waters and wetlands is a major question reserved for Congress and the states. The Sacketts argue the Court should limit EPA jurisdiction to “water” that is “inseparably bound up” with a “water” subject to Congress’s authority over interstate commerce. Other waters and land properly belong under the control of the states.

The Biden Administration and its friends are trying to make this case about environmental pollution. But EPA doesn’t require this sweeping power it is claiming to keep water clean and safe. Congress intentionally preserved state power over intrastate waterways in the Clean Water Act and even required states to set water quality standards limiting pollutants.

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The Justices have an obligation to mop up their Rapanos mess. One salutary byproduct would be fewer required permits for private projects. The worst part of the Sacketts’ long legal nightmare is that it could happen to any law-abiding American, which is what happens when the administrative state is allowed to exercise lawless power. Checking that abuse is an entirely legitimate role for this legitimate Court.