The U.S. Supreme Court has stripped federal agencies of authority over millions of acres of wetlands, weakening a fundamental environmental law enacted half a century ago to purify the country’s heavily polluted waters.
A 5-4 majority significantly expanded the ability of farmers, homebuilders, and other developers to excavate or fill wetlands near rivers, lakes, and streams, finding that the government had long taken such activities too far.
Thursday’s ruling could overturn key parts of a rule imposed by the Biden administration in December that two federal judges had already blocked from enforcement in 26 states. It is the latest twist in a decades-long battle of courts and regulators to determine which waters fall under the Clean Water Act.
Some experts say the battle over wetlands may now shift to states, with red and blue states writing laws that take dramatically different approaches.
The Supreme Court’s decision follows a 2022 decision limiting federal authority to reduce carbon emissions from power plants and signals the court-emboldened conservatives’ willingness to limit environmental laws and agency powers.
“This is one of the saddest chapters in the 50-year history of the Clean Water Act,” said Jim Murphy, an attorney with the National Wildlife Federation.
Industry and agriculture groups praised the ruling.
“We are absolutely thrilled with the results,” said Travis Cushman, deputy general counsel to the American Farm Bureau Federation. “This is exactly the answer we’ve been asking for for a long time.”
The court majority sided with an Idaho couple who wanted to build a home near Priest Lake in the state’s panhandle. Chantell and Michael Sackett objected when federal officials identified a waterlogged portion of the site as a wetland, requiring them to obtain a permit before filling it with rocks and soil.
“Now that the case is finally over, they will have reasonable use of their property,” said Damien Schiff of the Pacific Legal Foundation, who represented the couple.
While all nine justices agreed that the Sacketts’ property was not covered by the law, they disagreed on the definition of “waters of the United States” and what wetlands it includes.
The majority opinion, written by Judge Samuel Alito, echoed a 2006 opinion by the late Judge Antonin Scalia. It said federally protected wetlands must be directly adjacent to a “relatively permanent” waterway “connected to traditional interstate navigable bodies of water,” such as a river or ocean.
They must also have a “continuous surface connection to that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” Alito wrote.
The court rejected a 17-year-old opinion by their former colleague, Anthony Kennedy, who described that covered wetlands have a “significant association” with larger bodies of water. It had been the standard for assessing whether permits were required for discharges under the pioneering Environmental Act of 1972. Opponents had objected that the standard was vague and unworkable.
Judge Elena Kagan, one of three liberals on the court, said the majority rewrote the law to get to the desired political decision by coming up with new ways to curtail the environmental protection powers Congress gave to the Environmental Protection Agency.
“The court will not allow the Clean (Water) Act to operate as Congress has directed,” Kagan wrote. “The court, rather than Congress, will decide how much regulation is too much.”
EPA Administrator Michael Regan said the decision “affects long-term clean water protection” and that the agency was considering its options.
The Biden administration’s regulations replaced a Trump-era rule that federal courts had thrown out and environmentalists said waterways were vulnerable to pollution.
Even after the court’s final ruling, some experts said ambiguities remain — and likely will continue as the EPA and the Army Corps of Engineers craft even more rules aligned with the court’s edicts.
Landowners looking to develop real estate near waterways will still have to hire consultants, “walk the land and find out if you’re in or out of federal reach,” said Boston real estate attorney Peter Alpert. “There will still be a lot of doubt about what’s in the gray area.”
The ruling could sink the protection of at least 45 million acres of wetlands, an area about the size of Florida, according to the Southern Environmental Law Center.
“They’ve endangered huge tracts of wetlands,” said Kelly Moser, an attorney with the center.
Judge Brett Kavanaugh said the majority likely removed protection from wetlands long considered regulated, including those behind levees along the flood-prone Mississippi River.
Despite their critical role in blocking floodwaters and filtering pollutants, those wetlands may lose their protection because they are not directly connected to the river, he said in an opinion that agreed with the Sackett case but significantly disagreed with the majority on the broader issues.
The ruling will have a major impact in the arid Southwest, where some rivers and streams dry up between infrequent rains, experts said. The court majority said the Clean Water Act only protects wetlands connected to rivers and streams that are “relatively permanent” or “continuous.”
“Uninterrupted is a big deal because we really don’t have water for 10 months of the year,” said Maureen Gorsen, a California environmental and regulatory attorney.
The ruling could lead some developers to decide they don’t need to apply for permits for projects that could disrupt wetlands, said Jim Murphy, director of legal advocacy for the National Wildlife Federation.
And those discussing settlements for wetland damage or building new ones to make up for losses could back out, said Alpert, the Boston attorney.
“Anyone involved in enforcement action…will now hit the pause button on negotiations with agencies and ask their advisers if there is any reason under this decision to even talk to the government,” he said.
Environmental advocates will push Congress and states to “close some of the gaps created by this decision,” said Murphy of the National Wildlife Federation.
But Congress showed in March that it is in no mood to do so, voting to overturn the administration’s wetlands rules and vetoing President Joe Biden.
State governments can become another battleground. More than a dozen prohibit environmental regulations that are stricter than the federal one.
“You’re going to see a patchwork of regulations depending on what state you’re in,” says Ashley Peck, an environmental attorney in Salt Lake City.
The Supreme Court ruling is likely to lead to “red state” and “blue state” approaches to water conservation,” said Cara Horowitz of the UCLA School of Law.
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Washington reporters Mark Sherman and Jessica Gresko contributed to this story.
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