Introduction
If SCOTUS finds in favor of a small-town Idaho couple in Sackett v. EPA, it could end the federal government's jurisdiction over millions of acres of land.
reason.com/video/2023/01/10/the-supreme-court-case-that-could-upend-the-clean-water-act/
Everyone wants clean water, and America's public waterways haven't always been very clean.
In 1969, the Cuyahoga River in Ohio was so polluted by Cleveland's manufacturing industry that it caught on fire, which inspired a Time magazine feature describing a river that "oozes rather than flows."
In 1970, President Richard Nixon signed the National Environmental Policy Act, and later that year he established the Environmental Protection Agency (EPA) to "make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food."
But in fighting to reduce the pollution of air, land, and water, the EPA has dictated to Americans what they can do on their property even when it has no clear environmental benefit or exceeds the agency's authority.
Now the agency's broad mandate, for the first time since its creation, is facing a serious court challenge. It's a case that started 15 years ago with a couple living in a small town in Idaho.
"When I was in high school, I was up there camping and fell in love with Priest Lake and just had to try and figure out how to live there," Mike Sackett told Reason in 2012.
Mike and his wife Chantell Sackett purchased a tract of land abutting an easem*nt, which guaranteed them a prime view of Priest Lake. They planned to leverage their background in construction to build the lakefront home of their dreams. A few days into construction, the Sacketts received a surprise visit from the EPA and Army Corps of Engineers.
"They walked on to the property and said, 'you need to stop work immediately,'" says Chantell Sackett.
The government accused the Sacketts of filling in "wetlands." But the Sacketts didn't understand how a residential lot in an established subdivision with a full sewer hookup 100 yards from the lake and a county title with no indication of wetland status would qualify.
A nearby ditch drained into a stream that connected to the lake. It was separated from the lot by 30 feet of paved road. The proximity of the Sacketts' land to the ditch—in addition to the existence of a subterranean water flow discovered beneath their lot as they began construction—meant that their residential lot was a federally protected wetland, according to the EPA.
Although the Sacketts faced a fine of up to $75,000 a day for violation of the Clean Water Act and the compliance order, the EPA argued they had no right to challenge them in court until the agency actually took action to impose and collect the fine, which it could do retroactively at any time.
With this threat looming over them, the Sacketts paused construction. The EPA also wanted the Sacketts to remove the gravel they'd poured, fence in the lot, and plant foliage, but the couple refused.
"[The EPA told us], 'we want you to fence it. And then when we want you to plant these wetlands plants, and then we want you to watch it for three to five years and make notes, and we'll be able to come look at that.' And I go, 'are you kidding me?'" says Chantell Sackett. "Why would we do that? I mean, it's a lot in a subdivision…[Does the EPA] want to create a wetland?"
That was in 2012. The Sacketts' case went all the way to the Supreme Court, which ruled unanimously that the EPA's compliance orders were indeed subject to judicial review, meaning the agency couldn't retroactively fine the Sacketts for being in violation of the order as the court challenge was adjudicated.
Ten years later, the Supreme Court is taking up the next part of that case: a challenge to how the agency defines a "wetland."
Produced by Zach Weissmueller; edited by Danielle Thompson; additional graphics by Isaac Reese; sound mixing by Ian Keyser
Music credits: "Turning Tides" by Letra via Artlist; "Several" by Melancholicks via Artlist; "Grey Shadow" by ANBR via Artlist; "The Other Side" by ANBR via Artlist; "Dark Hollows 7" by G-Yerro via Artlist; "Dark Hollows 11" by G-Yerro via Artlist; "Campfire" by Aleksey Chistilin via Artlist; "Solace - Instrumental Version" by Roniit via Artlist; "Internal Joy (Reprise)" by Bennett Sullivan via Artlist
Photo credits: Pacific Legal Foundation; Eric Lee - Pool via CNP/CNP / Polaris/Newscom; Graeme Sloan/Sipa USA/Newscom; SIPAUSA POOL/SIPA/Newscom; Chuck Kennedy/KRT/Newscom; Charles Trainor Jr./TNS/Newscom; Greg Lovett/ZUMA Press/Newscom; CNP/AdMedi/SIPA/Newscom
Content
Everyone wants clean, water, and America's.
Public waterways haven't always been very clean.
In 1969, the Cuyahoga River in Ohio, was so polluted by Cleveland's manufacturing industry that it caught on fire.
Bigger fires had engulfed the river before, but coinciding as it did with the rise of the modern environmental movement.
The spectacle inspired a Time magazine feature describing a river that "oozes rather than flows." In 1970, Nixon, signed the National Environmental Policy Act, and later that year he established the Environmental Protection Agency to make a coordinated attack on the pollutants which "debase the air we breathe, the water we drink, and the land that grows our food." But in fighting to reduce the pollution of air, land and water.
The EPA has dictated to Americans what they can do on their property, even when it has no clear environmental benefit or exceeds the agency's authority.
Now.
The EPA's broad mandate for the first time since its creation is facing a serious constitutional challenge.
It's a case that started 15 years ago.
With a couple living in a small town in Idaho., When I was in high school, I was up there.
Camping.
And fell in love with Priest Lake, and just had to try and figure out how to live.
There.
There's, no other place.
You'd want to be.
It is so peaceful and calm.
Mike and Chantelle Sackett purchased the tract of land abutting, an easem*nt, which guaranteed them a prime view of Priest Lake.
They plan to leverage their background in construction to build the lakefront home of their dreams.
A few days into construction.
The Sackett received a surprise visit from the EPA and Army Corps of Engineers.
They walked on to the property and said, You need to stop work.
Immediately.
He, said, Why?, They, said, Because.
We think you're filling in wetlands.
The wetlands.
The government's agents were referring to was a residential lot in an established subdivision, with a full sewer, hookup 100 yards from the lake and a county title with no indication of wetlands status.
There was a nearby ditch draining into a stream to connect to the lake.
It was separated from the lot by 30 feet of paved road.
The proximity of the second land to the ditch, in addition to the existence of a subterranean water flow, discovered beneath their lot as they began.
Construction meant that the residential lot was a federally protected wetland.
According to the EPA.
Although the seconds faced up to $75,000 a day for violation of the Clean Water Act in the compliance order, the EPA argued they had no right to challenge them in court until they actually took action to impose and collect the fine, which they could do retroactively at any time.
With.
This threat looming over them, the Sackett's paused construction.
The EPA also wanted the seconds to remove the gravel they had poured, fence in the lot, plant foliage.
But the couple refused.
'we want you to fence it, and then we want you to plant these wetlands plants.
And.
Then we want you to watch it for 3 to 5 years and make notes.
And and we'll be able to look at that.' And I, go, 'are you kidding me?' Why.
Would we do that? I mean,? It's a lot in a subdivision.
Do.
You want to create a wetland? That was in 2012.
The Sacketts' case went all the way to the Supreme Court, which ruled unanimously that the EPA's compliance orders were indeed subject to judicial review, meaning the agency couldn't retroactively, fine, the circuits for being in violation of the order.
As.
The court challenge was adjudicated.
Ten years later, Supreme Court is taking up the next part of that case.
A challenge to how the agency defines a wetland.
The first decision got us the right to get into court, and now we hope to finally secure that victory.
Damien Schiff is an attorney with the Pacific Legal Foundation, the nonprofit law firm.
That is arguing the case before the Supreme Court.
For a second time.
He says, a favorable ruling could finally constrain a federal agency that routinely bullies.
Landowners.
The big picture is a dispute.
That's roiled the property rights and environmental law communities for a half a decade, and that is the scope of the Clean Water Act.
The EPA, and the Army Corps, who are the agencies that administer this law, have over the last, several decades, used their regulatory authority to radically expand.
What qualifies as water in the United States.
The Clean Water Act allows the EPA to regulate all of the country's "navigable waters." From rivers to lakes, to streams to oceanic channels.
But.
The definition of navigable water has steadily expanded since the passage in 1972.
Farmers like Curtis Martin, weren't, allowed to add a manmade lake that increased the biodiversity of his land because EPA said it violated.
The act.
John Duarte almost lost his farm in California's Central Valley after EPA fined him more than $30 million in restoration, fees.
Reason coveraged Duarte's story.
Back in 2017.
These federal prosecutors can come in, like the sheriff in Nottingham, decide for themselves what they think a family can pay, decide for themselves if they want to destroy a family and take their land.
Away.
If.
The federal prosecutors, can come on this farm.
With this set of facts, there is no farm in America that is safe from this kind of prosecution.
The Supreme Court, weighed in on the EPA's expansive authority to regulate land in a 2006 case in which the agency had tried to stop a Michigan developer named John Rapanos from turning part of his 54-acre property into a shopping mall.
Even though it was more than 11 miles from the nearest navigable water.
Because, the land became swampy in the spring, as the snow melted.
They argued that Rapanos' development plan would destroy protected wetlands.
He sued and a 5-4 majority vacated.
The ruling against Rapanos.
But Justice Kennedy declined to join Scalia's plurality, opinion that would have further limited.
The agency's regulatory authority.
Scalia wrote that "The standards the government sought, gave the EPA and Army Corps of Engineers jurisdiction over between 270 to 300 million acres of swampy lands, including half of Alaska and an area the size of California in the lower 48 states, and that landowners spent more than $1.7 billion a year.
Obtaining wetlands, permits." Kennedy rejected Scalia's reasoning and devised the Significant Nexis Standard, which gave the government the authority to regulate the land if the pollution would "significantly affect the chemical.
Physical and biological integrity of nearby navigable water." Kennedy's standard carried the day in lower courts, but Schiff says it's far too ambiguous to hold any longer.
That ambiguity is one that, unfortunately, EPA and the Corps have made a little too much.
Of., And I.
Think that's really what this case is, is going.
We hope to do, is to to make it clear that a small ambiguity does not mean carp.
Blanche to regulate anything.
We also recognize that it's sometimes hard to tell going from the middle of a river or a lake to the shore.
At.
What point are we still in the lake or the river? And at what point are we now on solid ground? And, that transition zone oftentimes is occupied by things like wetlands.
But that, of course, is not what EPA and the Corps want to do.
They, don't really see any need to have any sort of boundary.
Drawing problem.
They think wetlands on their own, even wetlands, that are de facto isolated from any other waters, could still be regulated.
That is, in fact.
Actually the case for this act.
I mean, there are a lot, is bounded by other developed properties and roads and there's no surface water connection from their lot to any other plausible water.
So.
They are effectively isolated., Nevertheless, EPA and the Corps think that they can regulate their property as waters of the United States.
So.
That's the big differences.
Sure.
There is some ambiguity, but it's not nearly as ambiguous as EPA and the Army Corps think.
But.
The EPA argues that it needs the power to regulate properties like the Sacketts, because human activity on nearby lands can have detrimental effect on protected waters like Priest Lake., They point to the Clean Water Act's authorization to regulate land "adjacent to protected water." But.
How far does adjacency extend? That question was raised by Justice Neil Gorsuch in oral arguments.
Despite the fact that there's a subdivision between this property and the lake,? It's still adjacent to the lake.
That's, the government's view of that.
And.
It's adjacent., Why? What's, the definition of adjacency? I think we are talking about adjacency, and that may not be something that gives you bright line rules, but it rules out things that are many miles.
Away.
Sure, the EPA would take that view.
The agencies have told me they do not draw bright line.
Rules.
They do not think 300 feet is unreasonable for adjacency.
So.
How about 3,000, feet?, Could, be.
I, don't know the answer to that.
Could it be three miles? I, don't think it could be.
Could it be two miles? Then again, when we start to talk about miles.
That sounds too far to the to..
One mile? To me, again., And I, see where this is headed.
But, but again, I think so.
So.
If the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know? So? The agency is, in recognition of this problem, make available free of charge, jurisdictional determinations as to any property.
They, also publicize their manuals and make available on websites..
Their manuals.
That don't tell us the answer.
There's, no doubt that an important part of water quality is wetlands, regulation., I mean.
Nobody denies that.
But.
The question is, is that something that Congress intended to implement at the federal level in the Clean Water Act now? The.
Best way to figure that out is, well,? Let's look at the text.
The text.
Did it mention wetlands? If? The ruling goes this way, there's going to be a lot of people that are afraid that now polluters are just unshackled to dump stuff into bodies of water or.
You know, nearby wetlands that could affect bodies of water.
And, we're all going to be worse off for it.
What.
Would you say to somebody who has that concern? Just, because the feds don't regulate doesn't mean that state and local governments can't regulate.
And in fact,? There are examples of where, when the Supreme Court has limited the scope of the Clean Water Act in prior cases, some states decided afterwards, 'okay, we're going to expand our own state water quality regulations to capture those areas that are now not federally.
Regulated.' Other states have chosen different paths, but it's certainly possible for that to be a supplement for areas where people think federal regulation is needed.
That may no longer be provided.
Images of burning rivers can serve as dramatic reminders of the costs of uncontrolled pollution.
But.
That doesn't mean that the federal government is the best entity to protect natural resources.
In Florida, the Army Corps of Engineers has for years overridden local authorities to divert sludge from the state's largest lake into lagoons and estuaries, introducing toxic algae blooms that have wreaked havoc on the local ecosystem and introduced serious health, hazards.
Ironically, in possible violation of the Clean Water Act.
It's supposed to help enforce.
As, the Army Corps of Engineers transferred toxic water, toxic water from Lake Okeechobee to the east, through the C434 Reservoir into the Saint Lucia estuary and the Indian River Lagoon, and to the west.
Through the Caloosahatchee River.
Yes, sir.
We have we have conveyed water out of the system that has contained cyanobacteria and harmful algae, blooms., Yes, sir.
And.
The Corps considers that toxic.
Yes, sir.
It's hard to regulate wetlands federally and still preserve traditional state and local authority over land.
Use.
A big, broad federal law is oftentimes not the best way to resolve environmental issues, not just because it crowds out state and local efforts, but perhaps more importantly.
It crowds out private party, efforts.
When.
You have the federal government threatening significant fines for any sort of activity that may affect waters and also making it much more difficult to do anything in terms of private conservation.
Schiff says he expects a ruling in early 2023.
The more than a decade.
Long ordeal has taken its toll on the Sacketts who never completed work on the home.
But.
If their case prevails for a second time in the Supreme Court, they'll not only have established the clear right for citizens to challenge powerful executive agencies like the EPA in court, but also the rights of property owners to improve their lands without exorbitant compliance costs and legal threats from the federal government.
Most.
Private property rights violations nowadays happen because of environmentally motivated laws or environmentally motivated lawsuits.
And to fight back against that.
You have to go straight to the statutes.
Themselves.
So, a win here to appropriately narrow the scope of EPA's in the court's authority under the Clean Water Act would be a great achievement for our multi-decade efforts.
