This U.S. Supreme Court Case Could Destroy Water Protections

This U.S. Supreme Court Case Could Destroy Water Protections
The landowners at the centre of this case, Mike and Chantell Sackett, pose in front of the Supreme Court in 2011. (Photo: Haraz N. Ghanbari, AP)

The Supreme Court agreed this week to hear a case brought by two Idaho residents who have fought the Environmental Protection Agency for years over a wetland on their property. This isn’t just a simple case of some long-suffering landowners, though; it’s one that is backed by industry interests. And with the Court in an ultra-conservative phase, the case could totally reshape how waterways across the U.S. are protected from pollution.

“There’s a range of outcomes [to the case], all of which are bad,” said Dave Owen, a professor of environmental law at the University of Califonia, Hastings.

The case is centered around the Clean Water Act, a landmark piece of legislation passed in 1972 that regulates water pollution. Under the act, it’s illegal to pollute what it calls “navigable waters” without a permit. The act itself doesn’t define exactly what “navigable waters” are, though. In subsequent years, the term has generated a lot of debate and confusion. A lake is clearly navigable, but what about a wetland? Or a stream that disappears in the dry season but comes raging back with the rainy season?

Science, of course, increasingly shows that all kinds of waters — not just those visibly connected to lakes and streams — are crucial to maintaining water quality. “More and more scientists are realising that the quality of water and level of flows in bigger waterways is determined to a large degree by what happens in the headwaters, what happens in those upstream streams and wetlands,” Owen said. “Treating them as not part of a larger waterway is like saying that leaves are not part of a tree.”

Three previous Supreme Court cases have challenged the definition of what this terminology means. The most recent one, in 2006, somehow made the issue even more confusing, after the court’s judges issued a split opinion on what makes a “navigable water.” Justice Antonin Scalia authored the conservative justice’s side, while Justice Anthony Kennedy authored an opinion that allowed for a larger protective umbrella.

“The issue for courts ever since has been which of these standards actually applies,” Owen said.

That brings us to the case the court agreed to hear this week, Sackett vs. EPA. In 2007, Chantal and Mike Sackett started construction on their property near Priest Lake, Idaho. The couple subsequently received a notice from the EPA alerting them that the wetland they were filling in was protected under the Clean Water Act. The agency ordered them to stop work and restore the wetland or face heavy daily fines.

The Sacketts, instead, decided to sue, and their case made it to the Supreme Court. This case wasn’t about the wetland itself, but rather whether or not the couple could challenge the EPA in the first place. The court sided with the Sacketts in 2012. A few years later, the Trump administration handed the Sacketts another piece of good news: the EPA wouldn’t be enforcing its original permit, effectively clearing the way for them to build on their land.

That should have settled it. But the Sacketts decided to keep going, challenging the original EPA order about the wetland on their property — even as the agency said it had no plans to enforce it. “They are in the fight at this point purely for ideological reasons,” Owen said.

Let’s pause to note that a lot of this fuss would have been avoided in the first place, Owen said, if the Sacketts had simply gotten a permit. “Even if a property has wetlands or streams or some other body of water that’s protected by the Clean Water Act, that doesn’t mean you can’t build there,” he said. “If you do it without a permit, that’s when you get hauled into court.”

Last summer, the Ninth Circuit court ruled that the Sacketts’ wetlands were, in fact, protected. The Sacketts appealed because of course they did, and that’s how we ended up here, with Supreme Court getting set to decide whether or not the wetlands on the Sacketts’ property — and, by extension, these types of wetlands as a whole — are protected.

The Sacketts are being represented for free by the Pacific Legal Foundation, which, per its website, “defends Americans’ liberties when threatened by government overreach and abuse.”

“The Sacketts are delighted that the court has agreed to take their case a second time, and hope the court rules to bring fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration,” Damien Schiff, a senior attorney at Pacific Legal Foundation, said in a statement.

This isn’t just a simple David vs. Goliath story, though. The donors that have given to PLF include the Koch Network and the ExxonMobil Foundation; PLF Is also a member of the State Policy Network, a conservative network of right-wing organisations that works with the American Legislative Exchange Council. (The latter has spent years writing copy-and-paste legislation for conservative lawmakers, including punitive anti-pipeline protest laws and ones that penalise banks for not funding fossil fuels.) The network is behind several anti-environment initiatives in recent years, including efforts to hamper the Clean Power Plan, and one of its members is currently embroiled in a bitter fight over offshore wind. In short, conservative law and policy heavy hitters are lining up behind the case, which should give you a sense of the stakes.

PLF also brought that 2006 case before the court. Powerful industry interests, including construction and mining, have always been invested in restricting the reach of the Clean Water Act to cut down on the amount of permitting they need for polluting projects.

The 2006 case, Owen said, was “​​immensely frustrating to developers, the mining industry, people who build long pipelines — they thought they were going to get a big win, and they don’t feel like they got what they wanted. They’ve been angling for a chance to get the Kennedy standard off the books, or to get it interpreted much more narrowly. [The Sackett case] is their chance.”

And thanks to the incredibly conservative makeup of the Supreme Court, industry victory looks very likely. Owen said that one outcome could be that the court definitively rules that the more conservative Scalia standard defines what waters should be protected. “That’s a massive reduction in the scope of water quality protection,” he said. “It would probably be the most significant reduction in the scope of environmental protection since 1970, when environmental laws started to be made.”

Incredibly, that’s not even the worst case scenario; the court could decide to issue an even more conservative definition of what waters are protected. “That would make no sense in the context of the statute,” Owen said. “But, to be blunt, I don’t think this court cares a whole lot about reading statutes carefully when there are broader policy goals to be accomplished.”

This isn’t the only bedrock environmental law the Supreme Court is poised to radically rewrite. It will also hear a case this year that could redefine how the EPA regulates greenhouse gas emissions. I’m not a betting person, but given the openly industry-friendly makeup of the Court, I’d put money on both these decisions favouring polluters over the planet.

“Courts are unpredictable, so something else we can’t foresee could happen,” Owen said. “But if you care about water protection, it’s very unlikely that anything good will come of this case. It’s more of a question of how bad this is.”