Just when EPA thought it was putting its Trump Administration WOTUS interpretation behind it, here comes the Supreme Court of the United States!

Bloomberg Environment is the first to break the news that the United States Supreme Court has granted the wish of the Sacketts of Idaho, almost half the States of the Union and several associations who asked our nation’s highest court to review the Ninth Circuit’s adoption of the “significant nexus” test for determining the extent of Clean Water Act jurisdiction suggested by then Supreme Court Justice Kennedy in 2006.  

The Sacketts, who have already been to the Supreme Court once about how the Clean Water Act does or doesn’t apply to their half acre building lot in Idaho, found themselves on the wrong end of a District Court decision based on the application of Justice Kennedy’s “significant nexus” test.

Now the Sacketts could do what the Trump Administration EPA failed to do -- cause a substantial narrowing of the scope of Clean Water Act jurisdiction.

The United States Environmental Protection Agency had implored the Supreme Court to leave the Ninth Circuit’s "significant nexus" decision alone.  That isn’t surprising since EPA’s current effort to arrive at a “durable” definition of the reach of the Clean Water Act is based on Justice Kennedy’s “significant nexus” test.

For more on how we got here, see insights.mintz.com/post/102hcor/epa-seeks-to-avoid-second-trip-to-the-supreme-court-with-the-sacketts.

Justice Kennedy’s "significant nexus" test didn't command the support of a majority of the members of the Supreme Court in 2006 and it is very unlikely it will garner such support when the Supreme Court hears the Sacketts’ case next fall. 

The Supreme Court Justices who rejected the “significant nexus” test in 2006 included Chief Justice Roberts and Justices Alito and Thomas, all still in their seats. Only Justice Breyer remains of the Justices who took a broader view. Justices Gorsuch, Kavanaugh and Coney Barrett sit in seats formerly held by Justice Kennedy and the other dissenters.

Now it is up to EPA to decide whether it wants to proceed with the adoption of regulations grounded in a jurisprudential view that will most likely be rejected by a majority of the Supreme Court.  Regardless of what EPA decides to do, a “durable” definition of the reach of the Clean Water Act seems more unlikely than ever before.  Of course Congress could end the longest running controversy in environmental law once and for all but that's a whole different story.