Law for Sustainability
Wetland in Massachusetts that does not always have visible water.
If we don’t watch out, and a drowsy acceptance of what sounds like reasoning sets in, we will find ourselves back before the Clean Water Act (CWA) was passed – half a century ago. This would not be a good thing for wetlands and the Waters of the United States (WOTUS) that they sustain.
Before the Supreme Court now is a case brought by Michael and Chantell Sackett, who want the court to declare that EPA is wrong when it says it can prevent them from filling (destroying) a wetland by their house.[i] Their attorney, Damien Schiff of the Pacific Legal Foundation, explained in a Federalist Society discussion before the October 3rd oral arguments[ii], that landowners should be able to tell when their property is regulated wetland. In a brief supporting the Sacketts, the Southeastern Legal Foundation argued that “Without expert analysis or Agency clarification, no property owner could possibly know whether a trickle through her property implicates the CWA…[iii]” This is pretty much what Justice Scalia was addressing in the 2006 Rapanos case[iv], which has ruled this area of law in recent times (and which established a different standard, articulated by retired Justice Kennedy, who was there on the 3rd, watching oral argument). Scalia wanted it simple. He wanted to see a “continuous surface connection” between a wetland and an undeniably regulated navigable water – he wanted to see water to say EPA could protect it. I suppose one could say he had no faith that water was there, under the ground, or that in arid areas, an “ephemeral” stream might actually play a big role in water quality (when it comes to life after rain).
Before the Supreme Court now is a case brought by Michael and Chantell Sackett, who want the court to declare that EPA is wrong when it says it can prevent them from filling (destroying) a wetland by their house.[i] Their attorney, Damien Schiff of the Pacific Legal Foundation, explained in a Federalist Society discussion before the October 3rd oral arguments[ii], that landowners should be able to tell when their property is regulated wetland. In a brief supporting the Sacketts, the Southeastern Legal Foundation argued that “Without expert analysis or Agency clarification, no property owner could possibly know whether a trickle through her property implicates the CWA…[iii]” This is pretty much what Justice Scalia was addressing in the 2006 Rapanos case[iv], which has ruled this area of law in recent times (and which established a different standard, articulated by retired Justice Kennedy, who was there on the 3rd, watching oral argument). Scalia wanted it simple. He wanted to see a “continuous surface connection” between a wetland and an undeniably regulated navigable water – he wanted to see water to say EPA could protect it. I suppose one could say he had no faith that water was there, under the ground, or that in arid areas, an “ephemeral” stream might actually play a big role in water quality (when it comes to life after rain).
It was not Scalia but Justice Kennedy who actually garnered the most agreement with his standard of a “significant nexus”, which can be established by application of the various criteria cited in the law. Nexus is a legal word that means connection. It’s hard to spell out what that’s going to be in words, on paper. You need someone with a trained eye to make an informed judgment as to whether the nexus is significant. Congress set forth a number of things to look at to answer the question, with the aim of protecting the ecological whole, the system of water, our waters – the waters of us. Wetlands experts follow criteria that Congress clearly established in the Act, and because we have this expertise now, we have been able to slow the vast loss of wetlands that occurs because of human development.
On October 3rd Schiff argued that for a wetland to be considered “adjacent” – and thus to be protected by the EPA - it should be “touching” those waters that we understand as without doubt waters of the United States, those visible waters that meet our everyday dictionary understanding of water. In the Federalist Society discussion he noted that it would be so much cheaper if landowners could tell for themselves where that line was. He said it can cost hundreds of thousands of dollars to hire the experts who can make the call.[v] Justice Gorsuch pressed the EPA’s attorney on where the line is drawn – how far away can something be, and still be covered – and when the attorney said you couldn’t just draw a simple bright line like that, he said “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’s questioning then revealed that the Army Corps of Engineers will provide free determinations of whether there is a significant nexus between the wetland on your property and the WOTUS.[vi] It was very helpful that she removed the misconception that we’re all in danger of becoming bankrupt and thrown into federal jail because of the Clean Water Act.
Schiff told Federalist Society attendees that the law as written is a major “reworking” of the traditional federal-state allocation of powers. If you paid attention to the West Virginia v. EPA case[vii] at the end of the last Supreme Court session, you know that this conservative court is ready to use what is called the “major questions doctrine” like a big scissors to justify cutting out from our system of laws whole chapters of settled laws devised by agencies to protect us, if it sees them as a major reworking of our world without express authority from Congress. Those of us who accept the necessity of environmental law know that several Congresses have passed several laws that mandated major reworkings of our world, to respond to major threats. If you are trying to live in a dream of the past, you look past this – and keep looking back at the time before the realization that we are poisoning our own waters and serious measures are necessary. But there was a reason Congress passed major environmental laws a half-century ago that were a major reworking of things. We had to save ourselves from pollution.
Schiff also said that the Sacketts were proposing a way of reading the law that took note of all of its components – including a Congressional aim to preserve the powers of the state, which includes its traditional powers to regulate what a homeowner can do with their own property, and that this was a more faithful reading of the law. Both the Constitution and the laws establishing great new federal powers have ensured that the states still retain much power. The Clean Water Act gives states the lead if they want it. But quite apart from the question of whether the feds have overreached, the provisions about states are secondary to the primary aim of the Clean Water Act. Maybe if it were the States’ Rights Preservation Act then Schiff’s point would have real weight.
In the Federalist Society discussion William Buzbee, who teaches environmental law at Georgetown Law, pointed out that the law is absolutely clear about its purpose: water quality protection. He cited the sections that unambiguously set out Congress’s allocation of powers between the feds and the states, and that much state power is preserved, but the idea was to ensure clean water for everyone in the country. This was done explicitly. He explained that the law has not changed for fifty years, has been implemented pretty much the same way all this time. There is no major reworking here.
As recounted by Mark Joseph Stern in Slate[viii] Justice Jackson reminded Schiff that when Congress addressed this issue, there had been a regulation in place that defined “adjacent” as “neighboring” and Congress knew that, and “as far as I know,” Congress did not add “the touching requirement that you say was intended by the term.” When Schiff argued that Congress wanted to preserve state power, Jackson talked about the primary purpose of the law – water quality protection – and asked how this other purpose related. She asked why Congress didn’t specify what he was saying it intended. I wish she had been on the court when Rapanos was argued. She might have been able to scotch Scalia’s invention of the “continuous surface connection” by asking him why Congress didn’t specify that.
There’s looking at the law as Congress wrote it, as Buzbee and Jackson do, and there’s ideas about how the court should interpret the law. Schiff talked about how judges should read laws so as to avoid constitutional conflicts, such as the federal/state power dispute. Buzbee said Schiff’s professed constitutional concerns “skew the read”, and end up as “some sort of substantive canon”. While Justice Kagan seemed sympathetic to the bright line idea and seemed to work towards a compromise, the approach did not provide any clear resolution. It seems likely that the real tension here can only be resolved the way the Clean Air Act has it – by science. What the conservative, “careful” construction of constitutional meaning does is to pretend we can remove federal assurances and the states will do the job, that people doing what they want with their properties is not a proper concern and our waters will take care of themselves. If the Sacketts were treated unfairly, we should create a better process. But we can’t just ignore the need to fully protect our waters. You can’t walk a path constructed out of how you wish the world to be and expect to arrive safely.
The Sackett case feels like nothing more than carried-over resentment from 1972, a long-time failure to adjust. Remember, Nixon vetoed the Act and tried to impound funds for its implementation - that’s how much the creator of the EPA needed to change in order to keep his supporters behind him. When Congress overrode his veto that showed how much Congress wanted this law as it was written.
One can say that the major reallocation of powers between the federal government and the states took place at that time, but one can also say it was a simple application of the pre-existing principle of the Supremacy Clause, which has always given the federal government power over the states when it is necessary. This dates back to the founding. One could characterize the Clean Water Act as a realization of the rights in all the amendments and a furtherance of the powers given to Congress and the purposes of the government itself as expressed in the Preamble to the Constitution that formed it. But let’s grant that this new application of long pre-existing principles and responsibilities in this context was first articulated fifty years ago. It is still necessary to understand that this “major reworking” was necessary and Congress said so.
The Clean Water Act that was passed in 1972 and which gave the federal government the responsibility of ensuring that all Americans got good water, not just those in states that cared or had the capacity – but all of us - was the result of many other attempts at this goal which failed, because they preserved too much power to the states. There were earlier clean water laws and they didn’t work.[vi] We needed a strong federal power in order to grapple with the problem, and it has worked very much better than when it was just left to the states. Our story is so often framed by conservatives as the too-powerful federal government versus the wrongly weakened states. The real story is the federal government acting for all the people, and providing help the states – who are given the lead role in the implementation of the act. The system that Congress created causes conflicts only when the states don’t ensure their own citizens have clean water.
Who doesn’t want things to be like the days when we could just use our common sense? Who can fail to understand the irritation and impatient rejection of complexity, of change from what you thought was a constant? But that emotional refusal to accept reality does not produce solid legal reasoning. When Scalia (quoted by Schiff in the discussion) said that to let EPA have its way was like a “wink and a nod” to the agency, giving it unwarranted powers, it conjured up an image of evil federal forces. It rejects a basic modern fact that we live in a very complex, crowded world in which we need agencies to make these determinations, and most of them do so in an honest, professional manner.
Several who watched the proceedings have commented on Kavanaugh and Barrett’s questioning of Schiff. They had concerns about his argument. But while hope can eternally spring we can’t necessarily count on it landing. We need for the American public to understand what’s happening here. The Clean Air Act has a section on the Prevention of Serious Deterioration. It means that where clean air standards are being met, you can’t just pollute up to the point at which you have dirty air. You have to try to keep that clean air. This interferes with that old traditional right to build, do business, make money. We can’t respond with a fantasy that the world can just go back to what it was. If the Supreme Court narrows EPA’s jurisdiction so that the waters of our country cannot effectively be protected, that will be a serious regression in our maturing ability to grapple with environmental issues, and it will cause serious deterioration. We have made so much progress in cleaning up our waters and we need to Prevent Serious Regression.
While one can easily agree with conservative sentiments that EPA should not have unlimited power and that traditional lines of authority should be respected, and can be sympathetic to the claims that the current standard can cost a lot of money to figure out, the answer to those issues cannot be to weaken our ability to protect. We have to wake up from dreams of the world we prefer, to the one we’re in. It is realistic to get to work and do your best to face an issue, and regressive to turn to fantasy. The world we’re in has water badly needing protection. The EPA was given the power by Congress to do that job. In order to protect any single drop of water, it has to protect the system of waters. It was Creation itself, if you like, that failed to provide a “bright line” making things easier.
Technical note: it was in 1977’s reauthorization of the act that the wetlands provisions were added.
[i] The case has gone on for sixteen years. The story includes whether the Sacketts have been treated unfairly or whether they have willfully thumbed their nose at clear authority, but the question the court said it would address was whether to apply the standard that Justice Scalia set forth in a previous case to determine EPA’s jurisdiction.
[ii] Sackett v. EPA: How Will the U.S. Supreme Court Define "Waters of the United States?" | The Federalist Society (fedsoc.org)
[iii] https://www.supremecourt.gov/DocketPDF/21/21-454/196973/20211020153110373_20211020%20Final%20SLF%20Sackett%20Amicus%20Petition.pdf
[iv] 547 U.S. 715 (2006).
[v] See, for example, the National Association of Home Builders’ brief in support of the Sacketts, on the complexity and cost of applying Justice Kennedy’s significant nexus test: https://www.supremecourt.gov/DocketPDF/21/21-454/196973/20211020153110373_20211020%20Final%20SLF%20Sackett%20Amicus%20Petition.pdf547 U.S. 715 (2006).
[vi] https://lawandcrime.com/supreme-court/in-her-debut-oral-arguments-justice-ketanji-brown-jackson-presses-conservative-attorney-in-clean-water-act-case/.
[vii] 597 U.S. ___ (2022).
[viii] Ketanji Brown Jackson’s Supreme Court debut showed a skill that Stephen Breyer never mastered. (slate.com).
[ix] Encyclopedia.com on the 1948 Federal Water Pollution Control Act: “Legislators had made numerous attempts, totaling over 100 bills, to pass legislation over the previous half century, but without success. By 1948 industrial and urban growth fueled by World War II had led to obvious, and often notorious, pollution of the country's rivers, streams, and lakes, impelling Congress finally to confront the issue. Unfortunately, the act was not well designed and achieved little. It did not generally prohibit pollution, gave only limited authority to the federal government, and provided an extremely cumbersome enforcement mechanism. In 1972 Congress totally rewrote the act to provide adequate protection for the nation's waters.”
On October 3rd Schiff argued that for a wetland to be considered “adjacent” – and thus to be protected by the EPA - it should be “touching” those waters that we understand as without doubt waters of the United States, those visible waters that meet our everyday dictionary understanding of water. In the Federalist Society discussion he noted that it would be so much cheaper if landowners could tell for themselves where that line was. He said it can cost hundreds of thousands of dollars to hire the experts who can make the call.[v] Justice Gorsuch pressed the EPA’s attorney on where the line is drawn – how far away can something be, and still be covered – and when the attorney said you couldn’t just draw a simple bright line like that, he said “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’s questioning then revealed that the Army Corps of Engineers will provide free determinations of whether there is a significant nexus between the wetland on your property and the WOTUS.[vi] It was very helpful that she removed the misconception that we’re all in danger of becoming bankrupt and thrown into federal jail because of the Clean Water Act.
Schiff told Federalist Society attendees that the law as written is a major “reworking” of the traditional federal-state allocation of powers. If you paid attention to the West Virginia v. EPA case[vii] at the end of the last Supreme Court session, you know that this conservative court is ready to use what is called the “major questions doctrine” like a big scissors to justify cutting out from our system of laws whole chapters of settled laws devised by agencies to protect us, if it sees them as a major reworking of our world without express authority from Congress. Those of us who accept the necessity of environmental law know that several Congresses have passed several laws that mandated major reworkings of our world, to respond to major threats. If you are trying to live in a dream of the past, you look past this – and keep looking back at the time before the realization that we are poisoning our own waters and serious measures are necessary. But there was a reason Congress passed major environmental laws a half-century ago that were a major reworking of things. We had to save ourselves from pollution.
Schiff also said that the Sacketts were proposing a way of reading the law that took note of all of its components – including a Congressional aim to preserve the powers of the state, which includes its traditional powers to regulate what a homeowner can do with their own property, and that this was a more faithful reading of the law. Both the Constitution and the laws establishing great new federal powers have ensured that the states still retain much power. The Clean Water Act gives states the lead if they want it. But quite apart from the question of whether the feds have overreached, the provisions about states are secondary to the primary aim of the Clean Water Act. Maybe if it were the States’ Rights Preservation Act then Schiff’s point would have real weight.
In the Federalist Society discussion William Buzbee, who teaches environmental law at Georgetown Law, pointed out that the law is absolutely clear about its purpose: water quality protection. He cited the sections that unambiguously set out Congress’s allocation of powers between the feds and the states, and that much state power is preserved, but the idea was to ensure clean water for everyone in the country. This was done explicitly. He explained that the law has not changed for fifty years, has been implemented pretty much the same way all this time. There is no major reworking here.
As recounted by Mark Joseph Stern in Slate[viii] Justice Jackson reminded Schiff that when Congress addressed this issue, there had been a regulation in place that defined “adjacent” as “neighboring” and Congress knew that, and “as far as I know,” Congress did not add “the touching requirement that you say was intended by the term.” When Schiff argued that Congress wanted to preserve state power, Jackson talked about the primary purpose of the law – water quality protection – and asked how this other purpose related. She asked why Congress didn’t specify what he was saying it intended. I wish she had been on the court when Rapanos was argued. She might have been able to scotch Scalia’s invention of the “continuous surface connection” by asking him why Congress didn’t specify that.
There’s looking at the law as Congress wrote it, as Buzbee and Jackson do, and there’s ideas about how the court should interpret the law. Schiff talked about how judges should read laws so as to avoid constitutional conflicts, such as the federal/state power dispute. Buzbee said Schiff’s professed constitutional concerns “skew the read”, and end up as “some sort of substantive canon”. While Justice Kagan seemed sympathetic to the bright line idea and seemed to work towards a compromise, the approach did not provide any clear resolution. It seems likely that the real tension here can only be resolved the way the Clean Air Act has it – by science. What the conservative, “careful” construction of constitutional meaning does is to pretend we can remove federal assurances and the states will do the job, that people doing what they want with their properties is not a proper concern and our waters will take care of themselves. If the Sacketts were treated unfairly, we should create a better process. But we can’t just ignore the need to fully protect our waters. You can’t walk a path constructed out of how you wish the world to be and expect to arrive safely.
The Sackett case feels like nothing more than carried-over resentment from 1972, a long-time failure to adjust. Remember, Nixon vetoed the Act and tried to impound funds for its implementation - that’s how much the creator of the EPA needed to change in order to keep his supporters behind him. When Congress overrode his veto that showed how much Congress wanted this law as it was written.
One can say that the major reallocation of powers between the federal government and the states took place at that time, but one can also say it was a simple application of the pre-existing principle of the Supremacy Clause, which has always given the federal government power over the states when it is necessary. This dates back to the founding. One could characterize the Clean Water Act as a realization of the rights in all the amendments and a furtherance of the powers given to Congress and the purposes of the government itself as expressed in the Preamble to the Constitution that formed it. But let’s grant that this new application of long pre-existing principles and responsibilities in this context was first articulated fifty years ago. It is still necessary to understand that this “major reworking” was necessary and Congress said so.
The Clean Water Act that was passed in 1972 and which gave the federal government the responsibility of ensuring that all Americans got good water, not just those in states that cared or had the capacity – but all of us - was the result of many other attempts at this goal which failed, because they preserved too much power to the states. There were earlier clean water laws and they didn’t work.[vi] We needed a strong federal power in order to grapple with the problem, and it has worked very much better than when it was just left to the states. Our story is so often framed by conservatives as the too-powerful federal government versus the wrongly weakened states. The real story is the federal government acting for all the people, and providing help the states – who are given the lead role in the implementation of the act. The system that Congress created causes conflicts only when the states don’t ensure their own citizens have clean water.
Who doesn’t want things to be like the days when we could just use our common sense? Who can fail to understand the irritation and impatient rejection of complexity, of change from what you thought was a constant? But that emotional refusal to accept reality does not produce solid legal reasoning. When Scalia (quoted by Schiff in the discussion) said that to let EPA have its way was like a “wink and a nod” to the agency, giving it unwarranted powers, it conjured up an image of evil federal forces. It rejects a basic modern fact that we live in a very complex, crowded world in which we need agencies to make these determinations, and most of them do so in an honest, professional manner.
Several who watched the proceedings have commented on Kavanaugh and Barrett’s questioning of Schiff. They had concerns about his argument. But while hope can eternally spring we can’t necessarily count on it landing. We need for the American public to understand what’s happening here. The Clean Air Act has a section on the Prevention of Serious Deterioration. It means that where clean air standards are being met, you can’t just pollute up to the point at which you have dirty air. You have to try to keep that clean air. This interferes with that old traditional right to build, do business, make money. We can’t respond with a fantasy that the world can just go back to what it was. If the Supreme Court narrows EPA’s jurisdiction so that the waters of our country cannot effectively be protected, that will be a serious regression in our maturing ability to grapple with environmental issues, and it will cause serious deterioration. We have made so much progress in cleaning up our waters and we need to Prevent Serious Regression.
While one can easily agree with conservative sentiments that EPA should not have unlimited power and that traditional lines of authority should be respected, and can be sympathetic to the claims that the current standard can cost a lot of money to figure out, the answer to those issues cannot be to weaken our ability to protect. We have to wake up from dreams of the world we prefer, to the one we’re in. It is realistic to get to work and do your best to face an issue, and regressive to turn to fantasy. The world we’re in has water badly needing protection. The EPA was given the power by Congress to do that job. In order to protect any single drop of water, it has to protect the system of waters. It was Creation itself, if you like, that failed to provide a “bright line” making things easier.
Technical note: it was in 1977’s reauthorization of the act that the wetlands provisions were added.
[i] The case has gone on for sixteen years. The story includes whether the Sacketts have been treated unfairly or whether they have willfully thumbed their nose at clear authority, but the question the court said it would address was whether to apply the standard that Justice Scalia set forth in a previous case to determine EPA’s jurisdiction.
[ii] Sackett v. EPA: How Will the U.S. Supreme Court Define "Waters of the United States?" | The Federalist Society (fedsoc.org)
[iii] https://www.supremecourt.gov/DocketPDF/21/21-454/196973/20211020153110373_20211020%20Final%20SLF%20Sackett%20Amicus%20Petition.pdf
[iv] 547 U.S. 715 (2006).
[v] See, for example, the National Association of Home Builders’ brief in support of the Sacketts, on the complexity and cost of applying Justice Kennedy’s significant nexus test: https://www.supremecourt.gov/DocketPDF/21/21-454/196973/20211020153110373_20211020%20Final%20SLF%20Sackett%20Amicus%20Petition.pdf547 U.S. 715 (2006).
[vi] https://lawandcrime.com/supreme-court/in-her-debut-oral-arguments-justice-ketanji-brown-jackson-presses-conservative-attorney-in-clean-water-act-case/.
[vii] 597 U.S. ___ (2022).
[viii] Ketanji Brown Jackson’s Supreme Court debut showed a skill that Stephen Breyer never mastered. (slate.com).
[ix] Encyclopedia.com on the 1948 Federal Water Pollution Control Act: “Legislators had made numerous attempts, totaling over 100 bills, to pass legislation over the previous half century, but without success. By 1948 industrial and urban growth fueled by World War II had led to obvious, and often notorious, pollution of the country's rivers, streams, and lakes, impelling Congress finally to confront the issue. Unfortunately, the act was not well designed and achieved little. It did not generally prohibit pollution, gave only limited authority to the federal government, and provided an extremely cumbersome enforcement mechanism. In 1972 Congress totally rewrote the act to provide adequate protection for the nation's waters.”
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