Could a New Supreme Court Case Jeopardize the Clean Water Act?
The Clean Water Act was signed into law in 1972. This provided protection for vital American waterways through regulation to reduce toxicity in some areas and prevent further contamination in others. Constant images in the news of rivers on fire, sewage in drinking water, and industrial waste leaks helped to push the legislation along. Since the 70s, several amendments have been enacted, including by the Obama Administration in 2015, to institute the Clean Water Rule, which further protected drinking water for over 110 million additional US residents. The Trump Administration would later roll back several critical protections under the Clean Water Act.
The Supreme Court agreed to hear a new case, Sackett vs. Environmental Protection Agency, which was argued before the court in early October 2022. The case concerns the Clean Water Act, specifically the provisions it makes (or does not make, as one side argues) for wetlands within the United States.
The Sackett Family of Idaho purchased a parcel of land near Priest Lake with the intention of developing the area into housing. As part of the development process, sand and gravel were used to fill the site to prepare for construction. However, the EPA argued that the land contained a delicate wetland area that was subject to protection under the Clean Water Act, ordering the family to remove the material used to fill the site and restore it to its previous condition. The Sackett’s would need to seek a federal permit to perform any construction on the land containing the wetland. Instead of seeking out the permit, the family sued the EPA to avoid the requirement.
The resulting suit has created an opening for special interest groups to attack the Clean Water Act. The rule also comes on the back of the aforementioned reinterpretation by the Trump Administration of water regulations that favor polluting industry profits over the health of American waterways. Companies that can potentially pollute waterways have an interest in reducing the power of the Clean Water Act. First, they could avoid financial and legal penalties for committing acts that are found to pollute waterways, earning them further profit. Additionally, they could potentially reduce the regulatory requirements that are placed on them by agencies like the EPA, which also cost money but undoubtedly safeguard the water quality of millions of Americans annually.
The crux of the argument before the Court is if wetlands in the United States can be considered “navigable waters.” Wetlands contribute to the health of the world’s ecosystems and are some of the most productive habitats on earth. They are the critical habitat of thousands of fish, waterfowl, and other animals. Wetlands also protect communities from flooding due to storms. The EPA argues that the importance of wetlands is comparable to coral reefs and the Amazon Rainforest.
In addition to a potential increase in waterborne illness and disease, the Court’s ruling against the EPA case could constitute a widespread environmental justice issue. A ruling in favor of reducing the regulatory power of the Clean Water Act would put already at-risk community water supplies in danger of unchecked contamination. The environmental law advocacy group, EarthJustice, indicates that over half of the country’s wetlands could be subject to pollution should the ruling go through. Half of US wetlands have already been lost to construction and development.
Some law experts argue that any decision that curbs just the wetland authority of the EPA would not be significant enough to delegitimize the overall regulatory strength of the agency. Others consider that such a decision would provide even wider openings for suits to come against the EPA. The case is expected to be ruled on in 2023.
