• Curt Levey

CFJ Urges SCOTUS to Interpret Clean Water Act to Avoid Violating 5th Amendment

The Committee for Justice—along with the Atlantic Legal Foundation and Conservatives for Property Rights—have filed a Supreme Court amicus brief in support of Michael and Chantell Sackett, who have been prevented by the Environmental Protection Agency from building a home on a small residential lot in Idaho for the last 15 years. The EPA insists that the Sacketts first obtain a Clean Water Act (CWA) permit, because there’s an alleged “wetland” on their property that has a hypothetical “nexus” to a local lake.


The brief in Sackett v. EPA was authored by Lawrence Ebner of the Atlantic Legal Foundation and Nancie Marzulla of Marzulla Law. The case will be argued before the Court this fall.


Committee for Justice president Curt Levey issued the following statement:


The Committee for Justice decided to get involved in this case because fighting the frequent overreach of federal regulatory agencies and enforcing the Fifth Amendment’s prohibition on the taking of private property without just compensation are both central to CFJ’s mission of preserving the Constitution’s limits on federal power and its protection of individual liberty.


This case affords the Supreme Court an important opportunity to interpret the CWA’s operative phrase—“the waters of the United States”—in a way that reins in the federal government’s virtually limitless view of its jurisdiction over “wetlands” on private property. As Justice Alito observed in a related case, “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.”


Our amicus brief joins the Sacketts in urging the Court to definitively adopt the plurality’s view in an earlier Supreme Court case (Rapanos v. U.S.). Under their test “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right ... are … covered by the Act.” In contrast, the alternative, vague “significant nexus” test is at odds with the text and intent of the CWA.


The central argument in our brief is that, not only does the “significant nexus” test defy common sense and the rules of statutory interpretation, but it also must be rejected based on the canon of constitutional avoidance. Under this basic principle of statutory interpretation, any ambiguity in a statute must be interpreted to avoid unconstitutionality.


Specifically, the canon requires rejection because the “significant nexus” test, unlike the surface connection test, will often raise serious Fifth Amendment problems by allowing the government to effectively take private property without just compensation.


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