May 31, 2023 Liz Borkowski, MPH 0Comment

With their decision in Sackett v. EPA, Supreme Court justices willing to ignore evidence in order to strike down regulations have once again substituted their preferences for the intent of Congress and the expertise of a federal agency. Last summer, with West Virginia v. EPA, the anti-evidence majority erected new barriers to EPA’s ability to regulate greenhouse gases under the Clean Air Act; now, five of those justices have sharply curtailed the agency’s ability to use Clean Water Act authority to regulate pollution affecting our nation’s waterways. Even problematic Justice Brett Kavanaugh found his colleagues’ anti-evidence approach too glaring in this case.

All nine members of the Court agreed that the plaintiffs in the case, Michael and Chantell Sackett, should be able to proceed with home construction on a wetland property without first obtaining an EPA permit. (EPA considered permits to be required because the wetland on the property is adjacent to a lake, and construction activity could affect the lake’s water quality.) This agreement has led some people to claim the case had a unanimous decision, when in fact it’s a 5-4 split over how much EPA should be able to regulate, with grave consequences for public health.

Which Waters Get Regulated?

The Clean Water Act’s objective is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” and the law tasks the EPA Administrator with administering its provisions. The Act directs the Administrator, in cooperation with other entities, to “prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters.” The law also covers wetlands that are “adjacent” to the rivers and lakes that are its most obvious targets.

In the Rapanos v. United States case decided in 2006, Supreme Court justices proposed two competing tests for determining whether waters are “waters of the United States” (WOTUS) and therefore subject to regulation under the Clean Water Act. Justice Anthony Kennedy proposed examining whether the area question had a “significant nexus” with WOTUS, whereas Justice Antonin Scalia thought a wetland must have “a continuous surface connection.” The Court failed to obtain a majority for either test and sent the case back to the Sixth Circuit for a new analysis, but attorneys still reference the tests.

The Trump administration’s 2020 Navigable Waters Protection Rule only deemed wetlands to be WOTUS if they had “relatively permanent” surface water connections with other nearby waterways, and it included protections for wetlands that were cut off from nearby waterways by human-made structures like roads or berms. EPA’s science advisory board, which included several Trump appointees, concluded that the rule ignored science by “failing to acknowledge watershed systems.” The Biden administration’s WOTUS rule, announced at the end of 2022, used the significant nexus approach. The Sacketts argued for the use of Scalia’s test, but an amicus curiae brief from twelve scientific societies told the Court:

“… the significant nexus test is consistent with the science discussed in [the societies’] brief as it recognizes the contribution of wetlands and streams to the overall quality of traditional navigable waters. In contrast, Petitioners’ proposed framework rejects hydrological reality, ignoring the science behind the ways in which wetlands and streams affect traditional navigable waters. If Petitioners’ proposed ‘continuous surface-water connection’ to a traditional navigable water were required for wetlands, more than 50% percent of wetlands in some watersheds would no longer be protected by the Clean Water Act. Were such a standard applied to streams, ephemeral and intermittent streams would not be jurisdictional waters, and thus more than 90% percent of stream length in some watersheds would no longer be protected by the Clean Water Act.”

In Sackett v. EPA, all of the justices abandoned the “significant nexus” test despite the fact that science demonstrates such an approach is necessary for fulfilling the law’s objectives – a move that Center for Progressive Reform’s William Buzbee called “puzzling and disappointing.” Justice Samuel Alito, writing for the anti-evidence majority, went even farther than the Trump administration’s “relatively permanent” surface water connection and stated that wetlands must have a “continuous surface connection” to larger bodies of water to be subject to Clean Water Act regulation. At a time when climate disruption is altering drought patterns, that’s a high bar to clear – and one with terrible consequences for public health. American Rivers warns:

“Because it erases critical protections for tens of millions of acres of wetlands, the court’s ruling threatens the clean drinking water sources for millions of Americans.  Overturning federal protections for wetlands makes them vulnerable to pollution and harmful development, which impacts water quality, groundwater supplies, flood protection, and habitat for plants, fish, and wildlife. It will also make it more expensive to treat our water, driving up costs for millions of people. The court’s ruling will allow further destruction of wetlands, which will increase the rate and severity of flooding and flood damages in many places.”

Replacing Congressional Intent with Judicial Preference

Kavanaugh’s concurrence — joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — essentially tells Alito and the four justices who joined the majority opinion that they are just making things up (emphasis added):

“The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters. … In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

Kagan’s concurrence, joined by Sotomayor and Jackson, takes issue not only with the five justices’ decision to redefine “adjacent” to mean “adjoining” but with its erection of yet another barrier to environmental regulation: when the government is exercising power over private property, it must use “exceedingly clear language.” Kagan is scathing in her description of how the five justices approached the case:

“So the majority shelves the usual rules of interpretation—reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges’ policy preferences.”

And of the requirement for “exceedingly clear language,” she writes:

“ … clear- statement rules operate (when they operate) to resolve problems of ambiguity and vagueness … And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth. Those paying attention have seen this move before—actually, just last Term. In another case of environmental regulation (involving clean air), the Court invoked another clear-statement rule (the so-called major questions doctrine) to diminish another plainly expansive term (“system of emission reduction”). See West Virginia v. EPA, 597 U. S. ___, ___, ___ (2022) (slip op., at 2, 19). “[C]ontra the majority,” I said then, “a broad term is not the same thing as a ‘vague’ one.” Id., at ___ (dissenting opinion) (slip op., at 8). And a court must treat the two differently. A court may, on occasion, apply a clear-statement rule to deal with statutory vagueness or ambiguity. But a court may not rewrite Congress’s plain instructions because they go further than preferred. That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) “adjacent” to covered waters.

Like the call for “exceedingly clear language,” the major questions doctrine in West Virginia v. EPA erected a barrier to environmental rulemaking while giving courts a rationale for striking down rules that don’t align with the majority’s policy preferences. Rather than examining the text of the Clean Water Act and the kinds of scientific evidence about watersheds that EPA relies on when regulating, the five anti-public health justices used this opportunity to enshrine their own policy preferences — which, apparently, include letting property owners pollute the water all of us rely on — into case law. In doing so, they are taking power that should belong to Congress, and that it delegated to the executive branch, for themselves. That’s not how checks and balances are supposed to work.

How Low Can the Supreme Court’s Reputation Go?

When I started writing this post, I was inclined to refer the Court’s current majority as “anti-regulatory,” but that doesn’t seem right given that they’re perfectly willing to enable states regulations that force people to carry unwanted pregnancies to terms. The decision that allowed for such regulations, Dobbs v. Jackson Women’s Health Organization, also involved a disregard for evidence in the pursuit of policy preferences, so referring to them as “anti-evidence” seems more appropriate.

Polling by Pew Research Center shortly after the Dobbs decision found that over the course of just two years (2020 to 2022), the proportion of respondents who say the Supreme Court is conservative rose from 30% to 49%. Since that time, we’ve had even more reason to lose confidence in a Court that is supposed to be an impartial arbiter. In ProPublica’s bombshell “Clarence Thomas and the Billionaire” investigation, Joshua Kaplan, Justin Elliott, and Alex Mierjeski reported that for more than two decades, Thomas has accepted luxury trips virtually every year from real estate magnate and Republican megadonor Harlan Crow – and has done so without disclosing them as required. The Washington Post’s Emma Brown, Shawn Boburg, and Jonathan O’Connell reported that conservative judicial activist Leonard Leo arranged for Thomas’s wife, Ginni Thomas, to be paid tens of thousands of dollars for consulting work. This follows the revelation by Bob Woodward and Robert Costa that Ginni Thomas repeatedly urged then-White House Chief of Staff Mark Meadows to overturn the 2020 presidential election, but Clarence Thomas refused to recuse himself from related Supreme Court decisions such as whether Trump White House documents could be released to the House of Representatives January 6th committee.

A new Marquette Law School Poll found that the Court’s approval has fallen since January. Greg Stohr reports in Bloomberg News, “Only 25% of people expressed a great deal or a lot of confidence in the court, the lowest figure since polling began in 2019.”

Thomas is not the only justice faced with allegations of unethical behavior, but he’s currently the most visible one. Following the ProPublica story’s publication, the Senate Judiciary Committee held a hearing on Supreme Court ethics; Politico’s Josh Gerstein and Katherine Tully-McManus reported that in addition to partisan grandstanding, “some Republicans acknowledged the high court needed to address a spate of controversies about justices’ conduct.” A Judiciary Committee subcommittee hearing two weeks later addressed concerns about inadequacies in a 2011 ethics review of Thomas. Members of Congress have introduced two bills — the Supreme Court Ethics Act (S325/ HR927) and the Supreme Court Ethics, Recusal, and Transparency Act (S359/ HR926 ) — to address ethical concerns about a Court that has been able to make and enforce (or fail to enforce) its own rules for a long time.

Ethics reforms might result in recusals of some justices from cases where there’s a glaring conflict of interest, and that would be a step in the right direction. But when a majority of Supreme Court justices is willing to ignore evidence in a wide variety of cases, science-based public health protections will probably keep falling prey to those who value the rights of polluters above those of the public.

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