So the Sacketts of Idaho are 2-0 in their visits to our nation's highest court and the jurisdictional reach of the Federal Clean Water Act is shorter than it has been for decades. The opinion of the majority has more in common with the majority opinion in West Virginia v. EPA (see https://insights.mintz.com/post/102hs2y/the-supreme-court-is-out-of-the-environmental-law-making-business-so-what-happens) than it does with its most recent Clean Water Act opinion in Maui v. Hawaii Wildlife Fund which I think is entirely about the turnover in the Court since then.
Much will be written about the Sackett opinions but here are my initial thoughts.
Many of us predicted that a majority of the Supreme Court would drive a stake through the heart of then Justice Kennedy’s significant nexus doctrine (see https://insights.mintz.com/post/102hmln/i-doubt-the-supreme-court-will-adopt-the-sacketts-test-for-determining-clean-wat) and the Supreme Court has now done just that.
But the Court's majority has also ruled out of bounds interpretations of the Clean Water Act by Environmental Protection Agencies in Republican and Democrat Administrations over the past 40 years as Conservative Justice Kavanaugh points out in considerable detail.
In the meantime, EPA’s durable Waters of the United States rule proved to be anything but that. It must now be withdrawn because one of its two jurisdictional pillars, a significant nexus to a Water of the United States, has been obliterated and its other jurisdictional pillar has been eroded almost to the point of collapse.
For my entire adult life, the Courts have deferred to EPA’s interpretation of statutes it has been charged by Congress to implement. That era is most certainly over as is over three decades of back and forth between the Judicial and Executive Branches over the reach of the Clean Water Act. Now we'll see what, if anything, Congress has to say.
The court jettisoned the 17-year-old opinion by their former colleague, Anthony Kennedy, allowing regulation of wetlands that have a “significant nexus” to the larger waterways. Kennedy’s opinion had been the standard for evaluating whether wetlands were covered under the Clean Water Act. Opponents had objected that the standard was vague and unworkable.