Clean Water Catastrophe at the Supreme Court
An extreme-right majority of the U.S. Supreme Court has just devastated clean water protections across the nation.
In another extraordinary act of political activism on the Court, a narrow 5-4 majority decision unilaterally rewrites the meaning of a key provision of the Clean Water Act which helps define protected “waters of the United States.” The new Court-written definition eliminates long-established federal protection for an estimated half of American wetlands and 60 percent of all streams. This complete removal of decades-old federal jurisdiction over most wetlands and headwaters streams will have a literally incalculable destructive effect on clean water nationwide, including in North Carolina.
The Court’s ruling comes in the case of Sackett vs. EPA, originally a narrow case over construction of a house in isolated wetland on a less than one-acre lot. The case was seized upon by a pro-polluter legal foundation as a means to attack the Clean Water Act, and was ultimately used by judicial extremists on the Supreme Court to broadly strip clean water protections nationwide.
Reacting to the Court’s decision, League of Conservation Voters (LCV) Deputy Legislative Director Madeleine Foote said, “Today the captured Supreme Court once again decided to put the profits of polluters ahead of what’s best for our health and environment. Since the Clean Water Act’s passage, polluters and their allies have tried to undermine the EPA’s ability to protect the waters our families depend on, and now this extremist court has disregarded science, the law, and basic common sense to grant them their wish. By allowing polluters to destroy our critical wetlands and other important waters, this decision will increase flooding and lead to more pollution, jeopardizing the health of our communities, especially the health of communities of color and low-wealth communities who are disproportionately impacted by water pollution. Congress must fix the damage done by this Supreme Court by passing new legislation to safeguard our waters, and to expand and rebalance the Supreme Court.”
The majority opinion by Justice Samuel Alito said that the Environmental Protection Agency (EPA) only had authority to regulate pollution or destruction of wetlands and small streams if they have a “continuous surface connection” to larger (“navigable”) waters—a new test which appears nowhere in the language of the Clean Water Act itself. In his responsive statement, President Joe Biden said, “The Supreme Court’s disappointing decision in Sackett v. EPA will take our country backwards. It puts our Nation’s wetlands – and the rivers, streams, lakes, and ponds connected to them – at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on.”
Even the normally very conservative Justice Brett Cavanaugh dissented from Alito’s decision, pointing out that this unprecedented interpretation of the Clean Water Act was so extreme that it would threaten flood-control measures on the Mississippi River and established protection plans for waters as iconic as the Chesapeake Bay. Cavanaugh wrote that Alito’s majority opinion “departs from the statutory text [of the Clean Water Act], from 45 years of consistent agency practice, and from this Court’s precedents” and will have “significant repercussions for water quality and flood control throughout the United States.”
Since the Clean Water Act was adopted, “across all eight Presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man made dike or barrier, natural river berm, beach dune, or the like,” Kavanaugh wrote in his dissenting opinion, which was also joined by the Court’s three more liberal members.
“We should not create ambiguity where none exists,” Kavanaugh wrote. “And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining,’ as the Court does today.”
“The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands. The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price.” said Manish Bapna, president of the Natural Resources Defense Council (NRDC). “What’s important now is to repair the damage. The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters. We’ll stand with frontline communities, scientists, health professionals and others to press for the responsible clean water protections we need.”
