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  • Curt Levey

What Deeply Divided Court? SCOTUS Unanimously Rebukes EPA on Clean Water Act

May 25, 2023

The following is a statement from Committee for Justice president Curt Levey on the Supreme Court’s decision today in Sackett v. EPA, in which CFJ filed an amicus brief:

In a statement about this case last fall, we said it “affords the Supreme Court an important opportunity to rein in the federal government’s virtually limitless view [under the Clean Water Act] of its jurisdiction over ‘wetlands’ on private property.” Today the Supreme Court took full advantage of that opportunity, handing the EPA as decisive a rebuke as any of its critics could have hoped for.

The result, as Justice Thomas said in concurrence, was to “curb[] a serious expansion of federal authority that has … diverted the Federal Government from its important role as guarantor of the Nation’s great commercial water highways into something resembling a local zoning board.”

For fifteen years, the EPA prevented Michael and Chantell Sackett from building a home on a small residential lot in Idaho, citing an alleged “wetland” on the lot that has a hypothetical and indirect “nexus” to a nearby lake. Today the Court soundly rejected the EPA’s “significant nexus” test, as CFJ’s amicus brief in the case—authored by Lawrence Ebner of the Atlantic Legal Foundation and Nancie Marzulla of Marzulla Law—urged. The EPA’s “unchecked definition of ‘the waters of the United States’ means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties,” the Court noted.

Instead, as CFJ’s brief also urged, the Court said that the EPA (and Army Corps of Engineers) only have jurisdiction where a wetland has a “continuous surface connection” with “traditional interstate navigable waters,” such that it is “difficult to determine where the water ends and the wetland begins.”

While the Court did not explicitly mention the major questions doctrine, it relied on the logic behind that doctrine, noting “We have often remarked that Congress does not hide elephants in mouseholes by altering the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Therefore, “it would be odd indeed if Congress had tucked an important expansion to the reach of the [Clean Water Act] into convoluted language in a relatively obscure provision concerning state permitting programs.”

While concurrences by Justices Kavanaugh and Kagan disagreed with the majority on what the correct test should be, the Court’s decision was unanimous. All nine Justices believed the EPA’s interpretation of the Clean Water Act went too far.

This is the second time this spring that the Court has unanimously taken a bite out of the administrative state in a landmark decision. Last month, the Court ruled against the Federal Trade Commission in Axon v. FTC, in which CFJ also filed an amicus brief. This unanimity puts the lie to the notions that the Court will inevitably be deeply divided in major cases and that the reining in the administrative state is a partisan exercise.

The Committee for Justice got involved in this case because fighting the frequent overreach of federal regulatory agencies and protecting private property rights are both central to CFJ’s mission of preserving the Constitution’s limits on federal power and its protection of individual liberty.



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