Supreme Court Limits E.P.A.’s Power to Address Water Pollution (2023)


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Experts said the decision would sharply undercut the agency’s authority to protect millions of acres of wetlands under the Clean Water Act, leaving them subject to pollution without penalty.

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Supreme Court Limits E.P.A.’s Power to Address Water Pollution (1)

(Video) Supreme Court rules against EPA on Clean Water Act case

By Adam Liptak

Reporting from Washington

The Supreme Court on Thursday curtailed the Environmental Protection Agency’s authority to police millions of acres of wetlands, delivering another setback to the agency’s ability to combat pollution.

Writing for five justices, Justice Samuel A. Alito Jr. said that the Clean Water Act does not allow the agency to regulate discharges into wetlands near bodies of water unless they have “a continuous surface connection” to those waters.

The decision was a second major blow to the E.P.A.’s authority and to the power of administrative agencies generally. Last year, the court limited the E.P.A.’s power to address climate change under the Clean Air Act.

Experts in environmental law said the decision would leave many wetlands subject to pollution without penalty, sharply undercutting the E.P.A.’s authority to protect them under the Clean Water Act.

“This is a really disastrous outcome for wetlands, which have become absolutely vital for biodiversity preservation and flood control,” said Patrick Parenteau, a professor at Vermont Law School.

Kevin Minoli, who worked as a senior E.P.A. lawyer from the Clinton through the Trump administrations, overseeing the enforcement of Clean Water Act regulations, said the decision would have enormous practical consequences and estimated that it would affect more than half the nation’s wetlands.

“If you’re in an area with a lot of wetlands, but those wetlands are not directly connected to a continuously flowing water body, then those wetlands are no longer protected by the Clean Water Act,” he said.

The decision was nominally unanimous, with all the justices agreeing that the homeowners who brought the case should not have been subject to the agency’s oversight because the wetlands on their property were not subject to regulation in any event. But there was sharp disagreement about a new test the majority establishedto determine which wetlands are covered by the law.

Justice Brett M. Kavanaugh, joined by the three liberal justices in a concurring opinion, said the decision would harm the federal government’s ability to address pollution and flooding.

“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “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.”

(Video) Supreme Court Limits E.P.A.’s Power to Address Water Pollution

In a second concurring opinion, Justice Elena Kagan, referring to the court’s decision in June to curtail the E.P.A.’s ability to restrict power plant emissions, criticized the majority’s interpretation of the law.

“There,” she wrote, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”

The ruling was also another example of the court’s skepticism of the authority of administrative agencies, said Jonathan H. Adler, a law professor at Case Western Reserve University. “The current court,” he said, “is clearly unwilling to defer to an agency about the scope of that agency’s own power.”

Damien Schiff, a lawyer with the Pacific Legal Foundation, which represents the homeowners in the case, praised the Supreme Court’s decision. “Courts now have a clear measuring stick for fairness and consistency by federal regulators,” he said in a statement. “Today’s ruling is a profound win for property rights and the constitutional separation of powers.”

President Biden expressed dismay with the ruling and said his administration would consider next steps. “It puts our nation’s wetlands — and the rivers, streams, lakes and ponds connected to them — at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers and businesses rely on,” he said in a statement.

The case, Sackett v. Environmental Protection Agency, No. 21-454, concerned an Idaho couple, Michael and Chantell Sackett, who sought to build a house on what an appeals court called “a soggy residential lot” near Priest Lake, in the state’s panhandle.

After the couple started preparing the property for construction in 2007 by adding sand gravel and fill, the agency ordered them to stop and return the property to its original state, threatening them with substantial fines. The couple instead sued the agency, and a dispute about whether that lawsuit was premature reached the Supreme Court in an earlier appeal. In 2012, the justices ruled that the suit could proceed.

In a concurring opinion at the time, Justice Alito said the law gave the agency too much power.

“The reach of the Clean Water Act is notoriously unclear,” he wrote. “Any piece of land that is wet at least part of the year is in danger of being classified by E.P.A. employees as wetlands covered by the act, and according to the federal government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”

On Thursday, all nine justices agreed that the agency had gone too far in seeking to regulate the Sacketts’ property.

“I agree with the court’s bottom-line judgment,” Justice Kavanaugh wrote, “that the wetlands on the Sacketts’ property are not covered by the act and are therefore not subject to permitting requirements.”

That suggested that the court could have issued a far more limited ruling, Professor Parenteau said.

“They could have rendered a narrow decision based on the facts of the Sackett case and said, in this case, where a wetland is this small and is not connected to the lake, it should not be subject to federal control.”

Instead, he said, the majority “fashioned a policy for the entire United States based on this one particular set of facts of this property in northern Idaho.”

The two sides on Thursday differed principally on the Clean Water Act’s coverage of wetlands that are “adjacent” to what the law calls “waters of the United States.”

That second term, Justice Alito wrote, “was decidedly not a well-known term of art” and a “frustrating drafting choice.” He said it included “streams, oceans, rivers and lakes.”

But what does it mean for wetlands to be “adjacent” to such bodies of water? Justice Alito wrote the term can mean “contiguous” or “near.” For purposes of the Clean Water Act, he wrote, “wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

The four justices in the minority took a different view.

“‘Adjacent’ and ‘adjoining’ have distinct meaning,” Justice Kavanaugh wrote, adding that he would have included wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.”

He added: “There is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes and other waters.”

Justice Kagan gave an example of the difference between adjoining and adjacent.

"In ordinary language,” she wrote, “one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”

(Video) Supreme Court decision weakens EPA authority, scales back scope of Clean Water Act

Justice Alito responded, quoting from an earlier decision, that Congress must use “exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the government over private property.”

Justice Kagan wrote that last year’s climate-change decision used similar reasoning, invoking “another clear-statement rule (the so-called major questions doctrine) to diminish another plainly expansive term.”

She added: “Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate.”

Lower courts ruled that the Sacketts’ property was a wetland that the agency could regulate, concluding that it qualified under a 2006 Supreme Court decision, Rapanos v. United States, which featured competing tests for deciding that question.

Justice Antonin Scalia, who died in 2016, wrote for four justices in the Rapanos decision that only wetlands with “a continuous surface connection” to “relatively permanent, standing or flowing bodies of water” qualify.

Justice Anthony M. Kennedy, who retired in 2018, said in a concurring opinion that the law required only a “significant nexus” between the wetlands at issue and bodies of waters.

The decision on Thursday rejected that view. “It’s striking,” Professor Adler said, “that no justice sought to preserve the ‘significant nexus’ test Justice Kennedy had articulated in Rapanos.”

Coral Davenport contributed reporting.

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak Facebook

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(Video) Supreme Court limits EPA's regulation of wetlands

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Supreme Court Limits E.P.A.’s Power to Address Water Pollution? ›

Supreme Court Limits E.P.A.'s Power to Address Water Pollution. Experts said the decision would sharply undercut the agency's authority to protect millions of acres of wetlands under the Clean Water Act, leaving them subject to pollution without penalty.

How does the government limit the pollution of water? ›

For waters that do not meet water quality standards, states must develop Total Maximum Daily Loads (TMDL)—a pollutant budget—which EPA approves. EPA and the states then work to restrict pollution to these levels—for example, by providing incentives to landowners to reduce nonpoint source pollution.

What is Section 320 of the Federal Water Pollution Control Act? ›

Section 320 authorizes the establishment of a State/Federal cooperative program to nominate estuaries of national significance and to develop and implement management plans to restore and maintain the biological and chemical integrity of estuarine waters.

What is the current US federal law that controls water pollution? ›

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.

Does the EPA regulate water pollution? ›

EPA enforces federal clean water and safe drinking water laws, provides support for municipal wastewater treatment plants, and takes part in pollution prevention efforts aimed at protecting watersheds and sources of drinking water.

How can the government limit pollution? ›

Reducing exposure through city planning

Cities can use air quality information and emissions data to guide planning decisions in ways that reduce residents' exposure to air pollution, for example, by building schools, hospitals or housing developments farther away from major sources of pollution like freeways.

Why does the act not stop all water pollution? ›

Non-point source pollution comes from many places. It's difficult to trace to its source and therefore is not controlled by the Clean Water Act. A common cause of non-point source pollution is runoff, such as when rain or flood waters carry pollution as it runs off the land.

What is Section 402 of the Federal Water Pollution Control Act? ›

Section 402 of the Clean Water Act requires that a discharge of any pollutant or combination of pollutants to surface waters that are deemed waters of the United States be regulated by a National Pollutant Discharge Elimination System (NPDES) permit.

What is Section 401 of the Federal Clean Water Act? ›

Under federal Clean Water Act (CWA) section 401 every applicant for a federal permit or license for any activity which may result in a discharge to a water body must obtain State Water Quality Certification (Certification) that the proposed activity will comply with state water quality standards.

What is Section 13 of the Federal Water Pollution Control Act of 1972? ›

No person in the United States shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance under this Act, the Federal Water Pollution Control Act, or the Environmental Financing Act.

Who made the Federal Water Pollution Control Act? ›

Water Pollution Control Act, 1948

Congress reacted to these problems by passing the Water Pollution Control Act of 1948. This Act authorized the federal government to help local governments solve their water quality problems.

What is Section 405 of the Clean Water Act? ›

Section 405(d) of the CWA requires EPA to: Establish numeric limits and management practices that protect public health and the environment from the reasonably anticipated adverse effects of chemical and microbial pollutants during the use or disposal of sewage sludge.

Why was the Federal Water Pollution Control Act passed? ›

Growing public awareness and concern for controlling water pollution led to enactment of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251 et seq.). As amended in 1977 (P.L. 95-217), this law became commonly known as the Clean Water Act (CWA).

What is the EPA limit? ›

Last year, after science showed virtually no level of exposure to drinking water is safe, the EPA set non-enforceable “advisory health limits” of 0.02 ppt and 0.004 ppt for PFOA and PFOS, respectively. The new legal limits for PFOS and PFOA is 4 ppt each, levels that science shows are still dangerous to drink.

Does the EPA have the power to regulate? ›

EPA is called a regulatory agency because Congress authorizes us to write regulations that explain the critical details necessary to implement environmental laws. In addition, a number of Presidential Executive Orders (EOs) play a central role in our activities.

What law allows the EPA to regulate these pollutants? ›

Under the Clean Air Act (CAA), EPA sets limits on certain air pollutants, including setting limits on how much can be in the air anywhere in the United States. The Clean Air Act also gives EPA the authority to limit emissions of air pollutants coming from sources like chemical plants, utilities, and steel mills.

Does the US Constitution mention cleaning up pollution? ›

“The natural resources of the nation are the heritage of present and future generations. The right of each person to clean and healthful air and water, and to the protection of the other natural resources of the nation, shall not be infringed upon by any person.

Which government controls pollution? ›

California Air Resources Board (CARB)

Like U.S. EPA, CARB sets California Ambient Air Quality Standards to protect the public from the harmful effects of air pollution.

How have laws helped to reduce water pollution? ›

The 1972 amendments: Established the basic structure for regulating pollutant discharges into the waters of the United States. Gave EPA the authority to implement pollution control programs such as setting wastewater standards for industry.

How many times has the Clean Water Act been violated? ›

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves.

What is the current status of the Clean Water Act? ›

The 2015 Clean Water Rule was repealed by the 2019 Rule, which reinstated the 1980s regulations, implemented consistent with the U.S. Supreme Court cases and applicable guidance.

What is the biggest problem with the Clean Water Act? ›

Shortcomings of the Clean Water Act and its Implementation

Beyond its language, the Clean Water Act fails to regulate “nonpoint source pollution,” or pollution that doesn't come from a discrete location, such as agricultural runoff.

What is Section 319 of the Federal Clean Water Act? ›

The 1987 amendments to the Clean Water Act (CWA) established the Section 319 Nonpoint Source Management Program Section 319 addresses the need for greater federal leadership to help focus state and local nonpoint source efforts.

What is Section 404 of the Federal Water Pollution Control Act of 1972? ›

Section 404 of the Clean Water Act requires authorization from the Secretary of the Army, acting through the Corps of Engineers, for the discharge of dredged or fill material into all waters of the United States, including wetlands.

What is Section 303 D of the Federal Clean Water Act? ›

Section 303(d) of the Clean Water Act authorizes EPA to assist states, territories and authorized tribes in listing impaired waters and developing Total Maximum Daily Loads (TMDLs) for these waterbodies.

What is Section 510 of the Clean Water Act? ›

As recognized by section 510 of the Clean Water Act, States may develop water quality standards more stringent than required by this regulation. Consistent with section 101(g) and 518(a) of the Clean Water Act, water quality standards shall not be construed to supersede or abrogate rights to quantities of water.

What is Section 311 J of the Clean Water Act? ›

(J) Establishment of procedures and standards for removing a worst case discharge of oil, and for mitigating or preventing a substantial threat of such a discharge.

When was Section 402 added to the Clean Water Act? ›

In 1987, after years of failed attempts by the EPA to adopt regulations for storm water under the Clean Water Act, Congress enacted section 402(p), establishing special standards for municipal storm water NPDES permits.

What is the Clean Water Act 212? ›

CWSRF 212 Eligibility

Publicly owned projects defined in section 212 of the Clean Water Act (CWA) are eligible. These include wastewater collection and treatment, regulated stormwater, and the water quality portions of municipal landfill projects.

Which federal organization was created to enforce water pollution limits in 1970? ›

Five months earlier, in July 1970, President Nixon had signed Reorganization Plan No. 3 calling for the establishment of EPA in July 1970.

Which of the following has been significantly decreased due to regulations from the Clean Water Act? ›

114) Which of the following has been significantly decreased due to regulations from the Clean Water Act? the capacity to do work.

What is the biggest EPA violations? ›

On October 22, 1998, the Department of Justice and the Environmental Protection Agency announced an $83.4 million total penalty against diesel manufacturers, the largest civil penalty ever for violation of environmental law.

What is the 20 times rule EPA? ›

The 20 times rule concentration for lead is 100 mg/kg, where the total lead concentration is 20 times the TCLP limit of 5 mg/L.

What is the EPA divide by 20 rule? ›

If a waste is 100% solid, as defined by the TCLP method, then the results of the total constituent analysis may be divided by twenty to convert the total results into the maximum leachable concentration. This factor is derived from the 20:1 liquid-to-solid ratio employed in the TCLP.

What did the Supreme Court rule about the EPA? ›

A new ruling by the Supreme Court cuts the EPA's power to enforce the 1972 Clean Water Act. It's a win for those who want to farm or develop closer to our nation's wetlands. President Joe Biden called the decision “disappointing.”

What did Scotus rule on EPA? ›

The Supreme Court curbed EPA's power to regulate carbon emissions from power plants.

Does the government control the EPA? ›

The Environmental Protection Agency (EPA) is a federal government agency, created by the Nixon Administration, to protect human health and the environment.

Is the US EPA is legally required to regulate greenhouse gases? ›

Supreme Court requires regulation

In a 5–4 decision in Massachusetts v. Environmental Protection Agency, the Supreme Court held that "greenhouse gases fit well within the Act's capacious definition of 'air pollutant' " and that EPA therefore has statutory authority to regulate GHG emissions from new motor vehicles.

Is the Clean Air Act constitutional? ›

The Clean Air Act is plainly constitutional under the Supreme Court's existing precedents.

Can the EPA regulate emissions? ›

In 2015, EPA issued a final rule establishing emission standards for greenhouse gas emissions from new fossil fuel-fired utility boilers and natural gas-fired stationary combustion turbines. Those emission limits remain in place today.

How can the government prevent water shortages? ›

Rainwater harvesting and recycled wastewater also allow to reduce scarcity and ease pressures on groundwater and other natural water bodies. Groundwater recharge, that allows water moving from surface water to groundwater, is a well-known process to prevent water scarcity.

Why does the government control water supply? ›

For example, the goal may be to protect water from nutrients and other runoff. Or, goals may be to protect aesthetics of a resource, or to protect natural habitat.

How might government water pollution regulations serve the public interest? ›

How might government water-pollution regulations serve the public interest? By ensuring that water does not contain toxins that could endanger people. The ______ clauses of the constitution support the principle that government can take private property only to meet a public need.

Has the government done anything for water crisis? ›

Governor Newsom announces $5.1 billion drought and water infrastructure package at San Luis Reservoir. The Governor's $5.1 billion proposed investment, over four years, aligns with his July 2020 Water Resilience Portfolio, a roadmap to water security for all Californians in the face of climate change.

What is currently being done to fix the water crisis? ›

Installing special tanks that store rainwater for irrigation. Using drip irrigation for more efficient watering. Establishing schools for farmers where they learn how to adapt to climate change with drought-resistant crops, crop rotation, and sustainable ways to raise livestock.

How has the government tried to solve the problem of water shortage in the drier parts of Uganda? ›

The Ugandan government now aims to have clean water and improved sanitation for everyone by 2030. Uganda plans to reach this goal by investing in quality water infrastructures, which involves restoring and maintaining clean water sources as well as promoting hygiene and investing in sanitation facilities.

Who controls the water supply in America? ›

Providing safe drinking water is a partnership that involves EPA, the states, tribes, water systems, and water system operators. The public drinking water systems regulated by EPA and delegated states and tribes provide drinking water to 90 percent of Americans.

Is water pollution going to get better? ›

Water pollution levels have generally improved compared to 50 years ago. Some trends are depicted in the images below, from a recent academic analysis. The Clean Water Act has driven pollution controls since 1972.

Why doesn t California store water? ›

Much of the water delivered to the Golden State in this year's storms is now flowing back into the ocean rather than being saved up for the rest of the year. That's partly due to inadequate infrastructure and limitations in how quickly the landscape can absorb water.

What is the most effective way to address water pollution? ›

Ways to Prevent Water Pollution
  • Pick up litter and throw it away in a garbage can.
  • Blow or sweep fertilizer back onto the grass if it gets onto paved areas. ...
  • Mulch or compost grass or yard waste. ...
  • Wash your car or outdoor equipment where it can flow to a gravel or grassy area instead of a street.
Jan 18, 2023

What is Section 101 of the Clean Water Act? ›

CWA is the primary Federal statute governing the restoration and maintenance of the “chemical, physical, and biological integrity of the Nation's waters.” (CWA § 101). One of its principal objectives is to prohibit the discharge of pollutants into waters of the U.S., except in compliance with a permit.

Why did people oppose the Clean Water Act? ›

In particular, they fear the Clean Water Rule could expand federal regulations that impact their private property rights. However, regulatory agencies and the regulated community need to know the limits of the Clean Water Act's reach so they can take appropriate measures to protect water resources.


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