Which wetlands are protected under the Clean Water Act? That’s the question before the Supreme Court in Sackett v. EPA. Back in 2004, Michael and Chantell Sackett purchased a residential lot near the idyllic and popular Priest Lake in Idaho. In preparation of construction, the Sacketts started filling the lot with gravel and sand. But after an anonymous complaint about the dredging and filling, the Environmental Protection Agency ordered the Sacketts to stop construction until the proper permits and assessments were sorted out. The EPA argued that the Sacketts were building on a wetland protected by the Clean Water Act. Instead of securing federal permits, the Sacketts took their case to the Supreme Court for a second time.
This week on Dissent, host Jordan Smith is joined by Sam Sankar, the senior vice president for programs at Earthjustice, a leading environmental law organization. Smith and Sankar discuss the Clean Water Act, wetlands and “navigable waters,” and the powerful interests backing the Sacketts. The outcome of the case, Smith and Sankar warn, could further gut the EPA’s ability to prevent pollution of the nation’s waters and combat climate change.
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Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.
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JS: In the Northern Panhandle of Idaho, nestled below the Selkirk Mountains is a body of water that the state touts as its “Crown Jewel.” Just miles from the Canadian border, Priest Lake is 19 miles long, up to 369 feet deep, and has a surface area of nearly 37 miles.
The area is home to all kinds of wildlife, including bears and bald eagles. And it’s a popular vacation spot — there’s boating, and I’ve read, excellent fishing. According to the local chamber of commerce, it’s a “magnificent” spot to take in the Northern Lights. It’s also known for its pristine waters.
Idaho Water Resource Board Promotional Video: Dawn breaks on the Northern end of Priest Lake on a quiet July morning, casting a golden glow on the water. A lone Angler Fishes off the point of the new 1,500-foot long breakwater structure, while the water skier carves perfect turns.
JS: In fact, there are four large wetland complexes along the lake’s 62 mile-shoreline that help to keep the lake’s water’s so pristine and its rich habitat intact. One of those wetlands is toward the Southern end of the lake, known as the Kalispell Bay Fen. And it is ground zero for the case we’re going to talk about today, Sackett v. EPA — a challenge to the federal Clean Water Act — the outcome of which could further gut our ability to combat climate change.
We’re going to jump into all of the specifics of the case with our guest, Sam Sankar, the senior vice president for programs at Earthjustice. Sam has spent his career working in environmental law, including as a trial attorney for the Justice Department. Earthjustice is a leading environmental law organization representing more than 1,000 pro bono clients in cases combating climate change.
Sam, welcome to Dissent.
Sam Sankar: Thank you. Very glad to be here.
JS: Just to start: Can you give us a bit of background on the Clean Water Act: What prompted its passage, what does it say, and, broadly, what is it intended to do?
SS: So the Clean Water Act is one of the nation’s core environmental laws, most of which were passed in the early 1970s, right after the initial Earth Day and this sort of congressional and national recognition that environmental degradation was becoming a nationwide problem. So it came in there with the Clean Air Act — and a lot of the other laws that we all think of as the laws that are core to protecting our environment.
What it basically says is that two agencies, the Army Corps of Engineers, and the U.S. EPA, have a responsibility for protecting the chemical, biological, and physical integrity of our nation’s waters. And the trick in all of these things is defining what you mean by the nation’s waters, and that’s what this case is about.
But broadly speaking, what the Act says is, in order to protect those waters, a couple of things have to be true. Number one: You’re not allowed to pollute those waters, if you want — and of course, we all know that lots of people are polluting waters all the time. So there’s a significant proviso, unless you get a permit. So typically, if you’re, say, a sewage treatment plant, you go to EPA, and you say: Hey, we need to treat sewage and we need to get a permit — and the EPA issues you a permit, and says: These are the rules you have to follow in order to discharge that pollution to that waterway.
And importantly, one of the kinds of pollution that are covered, pretty sensibly, is dredging and filling. So if you are near a waterway and you fill it in, that’s something that Congress cares a lot about — both because it can change the kind of waterway that you have, but also because dredging is a very important form of pollution to waterways, dredging and filling, both.
JS: Great. So, let’s talk about wetlands. We’ll get into wetlands in the Clean Water Act in a minute. But, first, I think, if you could explain the role that wetlands play in protecting our waters and our communities, that would be helpful.
SS: Sure. Well wetlands are our waters. As anyone who’s spent time on a lake or a river knows, when you get out of your boat near the shore, it doesn’t immediately transform from flowing water into dry land. There’s a huge amount of territory in this country and indeed the world that is in this shifting boundary between deep flowing water — or deep bodies of water — and dry, dry land. And wetlands are waters, right? Wetlands are the parts of our nation’s waters that are closely tied up in the soil underneath — that are right there.
So you can say that wetlands protect our nation’s waters. But what I would say is that our wetlands are protecting the surface waters, the parts of our waters that we think of as the rivers and the lakes and the streams. And wetlands protect those waters in several ways. First of all, they’re really important buffers for pollution, and sediment. So when you have a rainstorm, or when you have surface water runoff, wetlands trap a lot of the sediment, they collect a lot of that pollution, and they prevent it from entering the nation’s waterways.
Secondarily, they’re really important because they maintain water flow — so, as we’ve seen all over this country, as climate change is changing our weather patterns and precipitation patterns, flooding and drought are huge problems in this nation. And wetlands are critical buffers for both flooding and drought. And that means when it rains a whole lot, and you’re trying to avoid a flood, those wetlands are absorbing, they’re like a sponge. And in times of drought, where there’s no water, well, the wetlands are releasing that water back into the waterways, which is a good thing.
And lastly, they’re critical biological parts of the nation’s waterways. So everyone knows that, you know, frogs don’t lay their eggs in flowing water. [Laughs.] If you want to have a healthy ecosystem, you need to have these wetlands be healthy as well, because that’s where our fish and aquatic life — those are critical areas for the biological integrity of free-flowing and open waterways.
JS: So, now let’s talk about how wetlands come into play in the Clean Water Act — how they’re talked about in the act — and then, if you could, walk us through how that language has been interpreted by the Court?
SS: Sure. OK. There’s a lot in that question.
JS: Yeah. [Laughs.]
SS: And, in fact, inside of that question is the entire arc of this case — and the Supreme Court itself spent two hours talking about it after writing reams and reams of paper about it. So I’ll try to do this at a high level.
SS: When Congress wrote the Clean Water Act, it said that the waters it wanted to protect were navigable waters, but it didn’t really explain what “navigable waters” means. Instead, it actually used a very expansive term: “the waters of the United States.” And so that’s where this acronym “WOTUS” comes from, by the way — so: waters of the United States.
And it made it clear throughout the act that it wasn’t going to draw, take a Sharpie and draw a line around that, that it was relying on scientists, and experts, and agencies to figure out precisely what that means.
So shortly after that, the Army Corps put out a regulation that expressed a fairly narrow construction of that term that basically said: It’s the traditional navigable waters that go down these — the major stuff. And immediately, everybody said: Wait a minute, this doesn’t work. We passed this law in 1972 because the nation’s waterways were falling apart, the chemical, biological integrity of the waters was really degraded; the image that was burned into public consciousness as the burning of the Cuyahoga River caught on fire. And everybody said, Well, wait a minute, no, no, it’s more expansive than that very narrow, traditional test.
So the Army Corps went back and wrote new regulations that included coverage of wetlands that said, though, that this term “waters of the United States” includes these waters that are bound up with the shore — the wetlands.
And relatively soon thereafter, Congress passed some amendments to the Clean Water Act in 1977. And during the course of those amendments, developers and industries pushed really hard. They said: Hey, Congress, rewrite the law to make it clear that the Army Corps and EPA are wrong about this, that wetlands aren’t covered.
And in fact, they put a bill in, and the bill got passed by the House, but the Senate said: Uh-uh. No way. And: That’s not what’s supposed to happen here.
And, in fact, what happened was a law got passed to amend the Clean Water Act. And it included language in there that made it very clear that the Clean Water Act was going to protect wetlands. In fact, the Supreme Court said so itself in a case analyzing that language, it said that that new language in 1977 made it unequivocal that Congress meant to include wetlands — and yet. And yet! That doesn’t sit well with a lot of folks.
So the development industry, and a lot of other industries, have been pushing over and over to get what they couldn’t get in those amendments back in 1977. And since they can’t get Congress to do it, they have been trying a new approach and that is to get the courts to narrow the interpretation of this — to read the very same words differently than courts have been reading it for a long time.
And so the Sackett case that is going on at the Supreme Court is the culmination, a culmination, of that effort to say: If we can’t get the lawmakers to change the law, then maybe we can get the judges to change the law.
JS: So, I think before we go any further, I am going to give a shop to describe the property at issue in this case, which is owned by Chantell and Michael Sackett, so that folks can — [laughs] — maybe get an image of it in their mind.
So, the Sacketts’ property is just under two-thirds of an acre and sits 300 feet north of Priest Lake. At the south end of the property is a road that separates it from a cluster of houses along the lakeshore. There are no houses on either side of their property, and just to the north is Kalispell Bay Road. On the other side of that road is a large wetland complex, known as the Kalispell Bay Fen — which included the Sacketts’ property before the road went in. That main fen is still connected to the Sackett property via a shallow subsurface flow of water.
Also on the north side of Kalispell Bay Road, just 30 feet from the Sacketts’ property line, is an unnamed tributary that carries water from the wetland complex southwest from the Sackett property to Kalispell Creek, which drains into Priest Lake. I should also mention that at the shoreline, by the houses, just south of the Sackett property, are pipes that carry water, and that drains into the lake.
SS: For viewers — or listeners, I should say — who are struggling with this narrative explanation, it’s totally hard to understand. This situation dissolved into —
SS: — a bunch of words. But you can look at pictures. There are pictures in the record of this case.
SS: And I think anybody who looks at the pictures of the process when they caught the Sacketts filling this thing in midway — [laughs] you see an awful lot of water.
JS: Yeah. We’ll talk about that for sure. For sure. Absolutely. Because I was going to say, with that description in mind, maybe people can roll it around a little in their heads — but yes, you can find pictures — I want to get into the facts of the case. So I want you to tell us what the question is that the Court is being asked to weigh in on – and how the case got to the Court in the first place.
SS: Sure. So as with all legal questions, as with all good legal questions, this one comes wrapped up in a wonderful set of facts. And that’s how judges do law. Congress writes laws in the abstract, but judges should be deciding cases in very specific instances. And in this specific instance, here, we have this family — or this couple, the Sacketts — and they bought a piece of land in 2004. And they wanted to develop it. And as you said, it was connected to these nearby fans. And I think there’s been a lot of argument about what the status of the land is. We don’t have to describe it any further.
But they bought the land. And three years later, they decided they wanted to fill it in. Now, before they purchased it, about I think in 1996 or so, the prior owners had said: Hey, is this a wetland that’s covered by the Clean Water Act?
And they’d actually had folks in the government come out and look at it. And they said: Yeah, no, this is covered by the Clean Water Act. And if you want to get a permit to fill it in, this is how you would go about getting a permit.
And that’s an important fact, right? Nobody said they couldn’t do it. They just said: You need to get a permit. So the Sacketts decided to fill it in without getting a permit. So they got 1,700 cubic yards of gravel, and anybody who’s ever — as I have — tried to shovel a cubic yard of mulch when they were a teenager, and their dad asked to do it — [laughs] that’s a massive amount of fill.
So they’re filling this thing in. And somewhere in the middle of this, this is a very pristine area, and a lake that’s very pretty. And one of the neighbors said: Hey, I don’t know what these guys are doing! And they phoned in a tip. And some folks from the government came out and said: Look, you need to get a permit here. You can’t do it this way. So stop what you’re doing.
And when they came out and talked to them, the folks who they talked to was the excavation company that was actually filling it in, and that excavation company was actually owned by the Sacketts. So the Sacketts were people who were professionally specializing in this sort of work. And one could only imagine that they were pretty aware of what they were getting themselves into by filling this stuff without a permit — anyway!
They go ahead, and they fill this in, and then they get into a legal battle. They said: We are suing the EPA to say that we can’t be stopped from doing this.
And that case, which started quite a while ago has wound its way up to the Supreme Court before this. And the first time it went up to the Supreme Court, the question was whether or not the Sacketts could really bring a lawsuit like this at this preliminary stage, right, when EPA had not actually exacted penalties or anything against them. And the Court said: Yes, you can’t.
And so now what we see is that it’s gone all the way back down to the lower courts, and it’s all the way back up. So we’re 15 years now — 16 years, I guess — after that initial action and the Sacketts are still in the Supreme Court. The case has become a bit of a cause célèbre for those who want to restrict the scope of the Clean Water Act, and a bit of a head scratcher for many of us who want to defend it.
JS: Yeah. I was going to say that I wanted to talk about the Sacketts a little more, and you kind of got to it. I think it’s sort of emphasizing that the property was determined to be a protected wetland back in 1996. And again, when you look at the photos of the site, even with all that fill, there’s water everywhere. Everywhere that they haven’t filled in, it’s just like, water!
So Justice Sonia Sotomayor raised this in oral arguments in an exchange with Brian Fletcher, who is representing the EPA:
Justice Sonia Sotomayor: Your adversary — the other side, I shouldn’t call them adversary — the other side argued that Mr. Sackett could not tell this was a marshland. Is that true? Because you said the first thing is it has to be a wetland.
Brian H. Fletcher: So I don’t know what Mr. Sackett could tell, and I don’t want to speak to that. What I can speak to is what’s in the record, which is communications from the Army Corps to the prior owner in 1996 saying: This is a jurisdictional wetland, you would need a permit to build, here’s information about how to seek nationwide permits.
And we also have the pictures of the property that are at Petition Appendix 37 to 39 and also in the Joint Appendix. Now we don’t have pictures before it was filled in with gravel, but the pictures after it was filled in with gravel show that the parts that are not filled with gravel have standing water in them.
And, also, the Sacketts’ own environmental consultant who came and looked at the property confirmed the Corps’ judgment that these are wetlands. I think it’s also worth emphasizing that although they’re now separated by the larger fen across the street by Kalispell Bay Road, historically, before the road was built, that wasn’t true. It was all part of one wetlands complex, and the whole fen drained down through the Sacketts’ property and into Priest Lake.
JS: So kind of like what you seem to be suggesting, I find it hard to believe that it would not have occurred to the Sacketts that it might be connected to the fen — and even harder to understand given that they own a construction and excavation company. So one would maybe think that they had run against this kind of thing maybe once before.
But their attorney, Damien Schiff, disputed that they knew the property was in a wetland before purchasing it. In his closing statements, Schiff was channeling some, like, heavy victim energy – that the Sacketts are being abused by the big mean old government. And it was a vibe that appeared to resonate with at least a couple of the justices. Let’s listen to a bit of an exchange between Schiff and Justice Neil Gorsuch:
Justice Neil Gorsuch: And that is what’s being asked, is a person who purchased a property with a sewer hookup a block from the lake with a subdivision between you and the lake and a road on the other side is supposed to know that that’s a water of the United States, that piece of property, or else what? What are the penalties associated with this? What was threatened to your clients and what does one face in these circumstances?
Damien M. Schiff: Well, certainly, for the Sacketts in particular, they were threatened with significant civil and administrative penalties and, of course, also the continuing liability of having to restore the property to the way it was before they began any work. But, also, there is lingering over all of this discussion the threat of criminal penalties, and I think this is particularly important because the waters of the United States are as much relevant to the criminal portions of the Clean Water Act as the civil portions.
JS: And, notably, other justices were like: All you had to do was ask to know if it was covered – which, again, rather unbelievably, they didn’t appear to do.
Justice Ketanji Brown Jackson was among the justices who thought that was an issue:
Justice Ketanji Brown Jackson: Yes, I just wanted to follow up on Justice Gorsuch’s very fair points, which were my points. How do people know? Is there a process by which a homeowner can ask?
BHF: Yes. Any homeowner can ask the Corps for a jurisdictional determination. The Corps makes those available free of charge.
KBJ: And so you’re not really facing criminal liability without the opportunity to get an assessment from the government regarding your particular circumstances?
BHF: That’s correct.
JS: So, there we go!
SS: So — there are so many things to say here.
SS: So in my current job, I run a very large public interest environmental law firm called Earthjustice. But at previous points in my life, I’ve been a lawyer for industry and also for the federal government. And in particular, I was a Justice Department lawyer. And one of the things I did was try to enforce cases like this. And I can tell you that the idea that the government is running around criminally prosecuting people in these situations for truly innocent, accidental developments of these kinds of property is beyond ludicrous. It’s hilarious. You would get thrown out of the building if you said to your supervisor: I want to sue this couple in this situation.
And to be clear, nobody has ever actually done that. There is an imagined set of threats from these folks. In order to win in a criminal case, you have to show all kinds of intent, mental conditions that you could never prove in the situation that these folks are imagining.
In addition, as you yourself have pointed out [laughs], right — this is a couple who owned an excavation company. You know what happened here, I think we all know what happened here. They were pretty sure what would happen if they went and asked for a permit, that there would be conditions and there were things they have to deal with. And they did what a lot of people do when they put up a fence next to their neighbor’s yard or when they do something in the city and they hope nobody’s looking — they build a little addition on and they hope nobody notices. And when somebody does notice, and when somebody says: Hey, you needed to do it differently, they claim a whole lot of innocence.
I would venture to say most of your listeners have been there at least once. Whether it’s at a stoplight —
SS: Or out in the back of your property. And we understand that people do it. But then to claim that in this situation they were completely ignorant is, I think, kind of ludicrous.
JS: Yeah, it would be a little bit like the whole: Better to ask for forgiveness than permission.
SS: Exactly. Exactly.
JS: But see here, I think, I don’t know — and this is just me — I think that’s a little too generous. I mean, particularly when you read through the docket for this case, you were just struck by how many amicus briefs have been filed by industry groups – mining, construction, agriculture, like Big Agro! Can you talk a bit about who is backing their position — and, I guess, essentially what they’ve done, right? And about what their interests are or might be?
SS: Sure, well, the Sacketts are being represented by a law firm that is heavily bankrolled by industry interests. And as you’ve noticed, the industry interests that are filing all these briefs are not innocent landowner couples in the arid West wondering if they will be mousetrapped. No, these are polluting industries that are fully aware of what they’re doing and simply don’t want to have to follow the laws. They don’t want the laws to cover them. Because the scope of the Clean Water Act is really important. If you are a mining company, right now you have to follow laws that require you not to dig up all the wetlands or fill in the nearby streams or do things that cost you money, of course, but protect the rest of us. And if those laws didn’t exist, if the Supreme Court said: Well, this law that has been the same for 50 years is now different, that’s a profitable bonanza for you. Now you don’t have to protect those areas. So the reason those industries are filing all those amicus briefs is not because they have some abstract idea of what should be protected. It’s because they don’t want to have to protect the environment. And if the Supreme Court reduces the scope of the Clean Water Act, there’s less of the environment that the law protects.
JS: In contrast, Earthjustice penned an amicus brief on behalf of 18 native tribes. Can you talk a little bit about that brief and about the tribes’ interests here?
SS: Sure. Well, tribes occupy a special space in environmental regulation. In many cases, the government protects their interests through federal laws. And they rely on the protections of federal laws to protect their both official lands over which they have jurisdiction, the lands where they are sovereigns, but also lands that are historically theirs, and while they may not be under their property, are actually very significant — culturally, historically — for those tribes as well.
And so what our brief said is that the tribes rely on the Clean Water Act and those federal protections for a lot. This is not an abstract thing to them, and that many states will not protect their interests if the federal government is not there to do it.
For example, if you are a tribe that is downstream from one of these areas, that’s threatened by mining development, or by oil and gas infrastructure development, and those areas are no longer protected by the Clean Water Act. The water that inevitably comes out of those areas, that comes through those wetlands or that is no longer protected by those wetlands is degraded.
And under the current statutory framework, that is to say the one that we’ve been operating under for the last 50 years, the tribes have lots of opportunities to actually do something about it — they can comment, they can ask the federal government for intervention, they can do a variety of things to protect their interests. And in this situation that the petitioners, the Sacketts, are envisioning, the tribes would not have that protection.
And so Earthjustice filed this to say this isn’t just about the states and the federal government: There are important other sovereigns that have been sovereigns over this land for far longer than the federal government and the states.
JS: So can you give me an example of what you mean about how this would all play out for the tribes?
SS: So, for example, one of the tribes we represent, the Pueblo of Laguna, would lose somewhere between 80 to 97 percent of the protections for their waters because the Rio Porco in New Mexico flows through that area. And a lot of those waters in the areas are either intermittent or their wetlands, and depriving those areas of Clean Water Act protection would radically change the situation for the Pueblo of Laguna. There’s places in the Midwest along the St. Louis River where tribes have been harvesting wild rice for centuries, millennia — time immemorial in legal terms. Again, these are areas that would lose protections. And in the Pacific Northwest, along the Skagit River, the Swinomish Tribe, another one of our clients, would lose a lot of wetlands protection that are critical for juvenile salmon, a species and a resource that they’ve relied on again for millennia.
JS: So let’s dip our toes a little bit more into the turbid water of these arguments. [Laughs.]
SS: [Laughs.] There is a lot of opportunity for puns —
JS: I’m sorry, I couldn’t help myself.
SS: No, no, I don’t blame you. [Laughs.]
JS: OK! So, one thing that sticks out was just so much discussion of the word “adjacent.” And, naturally, what that word means here depends on who you ask. So Schiff was like, well, obviously it means things that touch — especially when you’re talking about quote-unquote “natural features.”
But a number of the justices were like, ummmmm, that doesn’t even match the common definition of the word.
So, here’s an example of that dynamic in an exchange between Schiff and Justice Elena Kagan, with a little Justice Ketanji Brown Jackson at the end:
DMS: However, the example that I was going to give is, if I were to say that I own two adjacent parcels of land, I don’t think anyone would just simply think that I meant I own two parcels of land in the neighborhood, that that necessarily implies that they’re physically touching, and it’s that particular —
Justice Elena Kagan: Well, let me give you another example. I grew up in an apartment building in New York City. If I say there are two adjacent apartment buildings, do they have to be touching each other, or it could be, you know, one is across a side street, you know?
DMS: Again, Justice Kagan —
EK: I mean, I would say that those two apartment buildings are adjacent to each other because there’s no other apartment building in between them, even if they’re not touching each other.
DMS: Again, Justice Kagan, I would say that when we’re speaking specifically about physical, topographic features, natural features like wetlands and other water bodies, I think that physically touching requirement is essential and is the meaning of adjacency as used in 404(g).
That is, in fact, actually —
KBJ: But, Mr. Schiff, isn’t the issue what Congress would have intended with respect to adjacency and there was a regulation that defined “adjacency” to include neighboring? And as far as I know, Congress used the term “adjacency” and didn’t adjust it to try to make clear the touching requirement that you say was intended by the term.
JS: Would you like to talk a little bit about adjacency? [Laughs.]
SS: Oh man. [Laughs.]
Well, let me talk about something even more general, which is the difficulties of doing these sorts of complex environmental judgments in a courtroom without pictures, right? Because there they are in the Court, they don’t have the pictures, they can’t talk about [it] — far removed from the situation where you have a bunch of people with law degrees, and who have to make adjacency analogies using apartment buildings in Manhattan —
SS: — talking about how this law should be interpreted. Well, Congress knew how it wanted to do this, which is to give the agencies these judgments. And instead, what’s happening is because of the way this Court is approaching the case, everybody is trying to figure out what one word means. And what Justice Jackson is pointing out is, Congress was trying to do something with this big law. Can we just focus on what they were trying to do? The rivers were on fire, wetlands were being lost at this incredible rate, all of this stuff was happening — can we interpret these words in light of those things rather than trying to figure out what they mean by looking at apartment buildings in Manhattan?
JS: [Laughs.] Right.
SS: Like Justice Kagan is not saying — she’s trying to illustrate that these words have slippery meanings.
SS: And that trying to pin them down without thinking about what Congress was trying to do and what the nation needs is a fool’s errand and one yet that this Court, and certainly the petitioners in this case, seem interested in doing.
JS: Yeah, I mean, I guess the language in the statute is something like: “wetlands adjacent thereto” — correct? Isn’t that right? The portion that they’re talking about? Which is these wetlands that are adjacent to these navigable waters — and it’s all bound up in the waters of the United States or WOTUS.
So I did find [laughs] — I was just like, oh, my God, I don’t think I ever want to hear the word adjacent ever again.
JS: Because I mean, I felt like — well, we can talk a little more about this, but I felt like Schiff was just sort of winging it, right? Like: This is what adjacent means. [Laughs.]
SS: Well, he’s winging it, because it doesn’t make any sense.
SS: And he knows it. And what’s tricky with these textual things — these hard, bright-line textual arguments — is even when you come up against hardcore textualists, people who are really interested in the words, people like Justice Kavanaugh, and Justice Barrett, and Justice Roberts will say: Look, if it can only mean one thing, it doesn’t make sense, right? So under your definition, this would happen. And wait a minute, even the Trump administration didn’t want to do what you wanted to do. Right?
SS: And so Mr. Schiff really struggled to try to put a persuasive position together in terms of legal strategy; what that did was open up a big middle space for what could be the rule here, which is never really what you want to do as an advocate, because he didn’t even really want to play on what other rules that could be put in.
JS: Yeah. Well, let’s talk about Kavanaugh and Barrett here for a second. Because I felt, broadly speaking, it felt like some justices would be happy to dismantle the science, the expertise, that’s baked into the CWA, while others – and Kavanaugh and Barrett come to mind – seemed more skeptical of Schiff’s position. And, at one point, to your Trump point, Kavanaugh says: Well, why is it that seven prior presidential administrations have disagreed with your position?
So let’s hear a bit of that exchange:
DMS: — definitional —
Justice Brett M. Kavanaugh: Last question, why did seven straight administrations not agree with you?
DMS: Well, I wouldn’t quite say it’s seven straight. At least under the Trump Administration, their proposal was certainly closer to what the text —
BMK: Wait. No, let’s be clear. They said that it would still be covered even if it was separated by a berm or dune, for example.
DMS: No, that is correct, and —
BMK: And under your test, that would not be covered?
DMS: That is correct, Justice Kavanaugh. And I don’t presume to know more than those seven prior administrations, but what I do know is what is the text that Congress has used, and nothing can supersede that.
BMK: Thank you.
JS: Although, I guess you are presuming, right?
SS: Yeah. Exactly. I wouldn’t presume to know more —
JS: However! [Laughs.]
SS: However, my client presumes that he doesn’t like — or they don’t like — what’s going on here.
SS: Look, what you’re seeing there is exactly what I talked about.
SS: Justice Kavanaugh is saying you have this very bright-line test. And it seems to create some really not-sensible results. And this, this problem with this bright-line test is what this Court is over and over and over getting itself into by focusing so excessively — not excessively — focusing so intently on the text, and really refusing to consider what experts scientific agencies are saying about how these rules should work.
The modern Supreme Court is really anti-agency — frankly, it’s anti-science — and it is struggling to make sense of these complex environmental laws, because it’s trying very hard to do it in a purely legal way without considering context, facts, science, and reality.
JS: Yeah. And while Kavanaugh is saying: Well, wait a minute — there were other points where he and others seemed to be feeling something for the Sacketts, right?
SS: Oh yeah!
JS: It’s like — we have a clip of Kavanaugh again, talking with Fletcher:
BMK: But the text doesn’t say in referring to adjacent in 1344(g) whether that means bordering or contiguous and stop there or also include neighboring, as the regulation does. And as I understand, the case really, as your brief set it out, comes down to, okay, what about a wetlands separated by a berm or dune or by a dike or levee? And on that question, I suppose, since Congress hasn’t specified that it goes that extra step, why not let Congress figure out where the line is? I mean, I think that’s the toughest hurdle you face, is that Congress — we’ve gotten, as Justice Alito says, from waters to adjacent and now from contiguous or bordering to also neighboring, and shouldn’t that be Congress’ job? So what’s your general response to that?
BHF: So I think, if you look at 1344(g) in context, Congress has answered this question.
We think you’d get there past just directly abutting and to neighboring on the dictionary definitions alone, the definitions we cite at page 22 of our brief, but I don’t think you need those here because of the history against which Congress acted.
JS: So, in other words, I feel like he is trying to thread the needle, right, a little bit — perhaps? I don’t know. I want to know what you make of all of it. And also, more broadly, what struck you about the arguments.
SS: So Kavanaugh’s entire approach to this is one that would not have been an approach of the Court — certainly not a majority of the Court — 20 or 25 years ago. That Court would have said: Well, it’s clear what the Congress is trying to do here, we’re not going to obsess over this or that. We’re also going to think about the history of the statute; we’re also going to think about the background facts against which Congress was regulating.
And Kavanaugh talks a little bit about that. But this kind of Kabuki dance about dictionary definitions and micro-parsing of when this happened and when that happened is a very new model. And it is a very pro-industry model of reading statutes. Because the more narrowly you are parsing these things, and the more you insist that judges make the decisions — and not the scientists, and not the experts in protection — the more you’re going to end up protecting only what the industries want to protect.
JS: On that, it seems like a decent time to circle back to something you said earlier, which is that just because the Sacketts’ property was considered a protected wetland under the Clean Water Act, does not mean that they cannot build there at all. Right?
So this brings me to a question — or maybe two — about the role of the federal government versus the state governments where clean water legislation and regulations are concerned. Because there was a lot of that [speaks in a robotic voice] federal-government-regulation-bad-energy going on during the arguments. And then there was like the suggestion at times that perhaps it would be different if the states had more control.
And I think — [laughs] — I don’t know that if that were the case, there would be a reason to think these challenges went away. So what I’m hoping is that you can tell us about the various roles that the feds and the states play here. And is it reasonable to buy into this notion that if the states were the ones taking the reins that the Sacketts, and the groups that support them would just be completely jiggy with those state environmental regulations?
SS: Well, first of all, the many industries that are on the side of the Sacketts are not big fans of state regulation. In fact, they are busily arguing in the case of the Clean Air Act that states like California can’t have their own regulations about air quality or tailpipe emissions of cars — that kind of state regulatory authority is inconsistent there, as soon as the states want to do something a little stronger, they say: No, no, no, you can’t.
Similarly, it’s important for all of us to remember that the reason the Congress passed the Clean Water Act in 1972, was before that, it was the states who were in charge of protecting waters. And it was a disaster. It was a disaster. The reason Congress passed the Clean Water Act is because empirically, it had failed, leaving it to the states. And also, structurally, it’s not surprising, right? States don’t have a whole lot of reasons to protect the water that goes downstream to other states. They also have a race to the bottom where the state that puts the least environmental regulations in place, probably gets the most industries to move in there. So there’s a whole lot of structural reasons why federal protections matter and make a lot of sense.
Additionally, one thing that these folks talking about state regulation will not want to talk about is the fact that most of the Clean Water Act is actually administered by states. That is to say it’s a federal law. But states actually run the programs, and the states really like to run the programs, and they can run the programs.
In some areas, however, whenever they take them over, the federal government kind of has to supervise this because many times the states don’t really want to actually do it. They want the money for the regulatory programs, but they don’t actually want to protect things. Again, there’s a lot of pressure from local developers. There’s a lot of pressure to race to the bottom and to not worry about downstream states.
So there’s a tremendous amount that is left to state regulation — for example, most agricultural pollution, water pollution, is not at all covered by the Federal Clean Water Act. Most of that is left to the states — not most, all is really left to the states. And that has been a disaster; most pollution of our nation’s waterways in the dead zone in the Gulf of Mexico and all sorts of other things are the result of agricultural pollution that hasn’t been handled by the states.
So anyway, when folks are saying: We want state regulation — that’s actually code for: We don’t want regulation.
One more thing, I would be remiss in failing to mention here. Many states have laws prohibiting them from putting in regulations that would protect these things. Many states, their own legislatures have said: If the federal government doesn’t protect it, we won’t protect it either. So again, states rights — [laughs] — just as it was with the Civil Rights Act, is in fact code for no regulation, no laws.
JS: Throughout this Dissent miniseries, we’ve talked a lot about how the Court really sets its own agenda. And one of the startling things in this case is that the Court took it while agencies were in the middle of making new rules, which seems bonkers to me.
Justice Elena Kagan made a point of acknowledging this:
BHF: The 2015 rule, as we discussed, tried to draw some bright-line rules. Those were criticized as arbitrary and over-inclusive, which is the problem with bright-line rules, that they’re over-inclusive or under-inclusive. But I certainly think there is a range of reasonable understandings of what adjacency means, and also I know you’re focused on that, but significant nexus too.
EK: Did I just understand you to say that the rule that you’re issuing may, in fact, have more guidance than we currently have as to what “adjacency” means?
BHF: I don’t want to represent what’s coming in the forthcoming rule because it’s not issued yet. And, by definition, the agencies haven’t finished their deliberation. I will say they’ve sought comment on how to cache out, how to crystallize, this significant nexus test and the adjacency framework that it is a part of. And they’ve also said that even after this rulemaking, they are interested in –
EK: When is the rule-making coming down?
BHF: So it’s with OMB now. It’s public that in September it went over to the Office of Management and Budget for interagency review. The agencies have told me that they still expect to issue it by the end of the year.
JS: So you have subject-matter experts, scientists, working on updated rules. And then you have the Supreme Court pluck this case and put it on its docket. So, maybe you can talk about that and how it fits with this agenda-setting theme, and what it means for the Court to be taking this case on now, knowing that rule-making is going on.
SS: Look, this is the clearest sign ever, that what we have with this conservative supermajority right now is a highly aggressive deregulatory Court. Because a Court that was just trying to get it right, and just trying to offer stability to regulated parties, to have the machinery of government work well, would never have taken this case, while the government was on the brink of issuing new regulations in this area.
That is totally contrary to the understanding of the way the Supreme Court is operated. And that is something that everybody learned in law school when I was in law school, and I think is still being taught in law school, but they’re now throwing asterisks up on that all the time. Why does it matter to wait until the other branches of government have their say? Well, that’s because the other branches of the government can do science, the other branches of the government do policy, the other parts of the government can wade through all of the potential consequences of reading law in one way or the other, and offer those judgments up in sophisticated legal regulations.
And when the Supreme Court hears one case, and reads a word like adjacent and tries to make sense of it from the dictionary, and rules before the government comes out with an explanation of this, it means that it’s taking power away from our policy branches, and grabbing them to these unelected judges who sit on the Supreme Court. That is the line — that is precisely the line — that the conservative movement used 30 or 40 years ago to complain about judges taking power away. But now that they’re in a situation where the country is largely in favor of environmental protections and doesn’t want to see these laws changed, they’ve gone to the courts. And they’ve gotten themselves a hyper-conservative Supreme Court that is willing to do these things. And this Court doesn’t need to see those regulations, because this Court, at least many of the justices, don’t care what the science says.
JS: Well, and also the swooping in amid rule-making, isn’t that also what happened with the Clean Air Act case that they took up in the last term? Isn’t it the West Virginia case?
SS: That’s right.
JS: I’m sensing a theme! [Laughs.]
SS: [Laughs.] Well, the Court is incredibly eager to put its stamp on this country. And when I worked at the Court, like I said, 20 years ago for a woman named Justice O’Connor, who had a profoundly different vision of the role of the Supreme Court in American society, which is one that issued rulings as infrequently as possible, and in as restrained a manner as possible, recognizing that when the Court answers something, debate stops; that it doesn’t really allow for the rest of government to be engaged. And she recognized that we make mistakes all the time. And once we write an opinion about this, it’s hard for us to undo those mistakes.
This Court doesn’t feel that way. It feels that it knows what it’s doing. And it can’t wait to do the things it wants to do. And one of the things that it clearly wants to do is restrict the role of the federal government in protecting the health and welfare of people.
JS: Yeah. And just as a side note, it sounded in arguments like those new rules were imminent. Have they been released?
SS: They were released at the end of last year, in December.
SS: And the federal government, the EPA, sent a polite note into the Supreme Court that said: Well, as Mr. Fletcher predicted, we did actually get these rules out. And we’re unsure of what to say to you. It didn’t literally say that — [laughs] — but geez, maybe you should take a look at these. But I guess you really can’t, because you said that you took the case and the regulations aren’t there — so it creates a real problem, because now we have new regulations that are out, that are the law of the land. And we have a Supreme Court case that is reviewing a situation from before these new regulations came out.
JS: I mean, I don’t know if there’s a way to even summarize it, how different the rules are or if there’s any significant change in the rules?
SS: Yeah. So before the Obama administration, everybody was operating on a set of regulations that were generally referred to as the 1986 regulations. And those were sort of the law of the land that had been the case for since the Clean Water Act was created.
In 2015, the Obama administration issued new rules that would have clarified and expanded the scope of this a little bit. Those rules were immediately enjoined. The Court said: No, no way, we want to look at these more carefully.
In the meantime, the Trump administration came in, put out an extremely narrow rule for what would be protected — although, as you said, not as narrow as what the Sacketts want, but a very narrow rule; that rule, too, got enjoined in a case brought by Earthjustice because it just didn’t follow the text of the act at all. And now we have a new Biden rule.
And in summary, what I would say is the Biden rule is significantly more conservative in its reach than the Obama administration’s rule. It strives to kind of make sense of this adjacency wording, and it strives to honor the intent of Congress to protect the chemical, physical, and biological integrity of the waters by trying to make clear that what we need to protect are the wetlands that have this close relationship with the surface waters that we all think of as being most obviously protected. So it includes a ton of context-sensitive stuff about how to figure that out; as we’ve pointed out, it talks about the resources that people have in order to figure out what is covered and what isn’t. It’s very deeply scientifically based — and in fact, if you went through and read all the science that it’s based on — it’s just a colossal record of information that the agency reviewed and tried to come up with this rule.
JS: You were a guest last year on Strict Scrutiny, and something you said stuck with me. It was essentially making the point that environmental laws are often written broadly and that they need to be written that way.
I’m more used to, in my daily work life, of thinking about laws like penal code violations — [laughs] — which are pretty specific. So could you talk about why environmental laws are written the way they are and why that matters?
SS: Sure — first of all, we’re learning more about the environment every day. And our understanding of what threats are out there today is very different than the understanding of Congress from 10 or 15, let alone 50 years ago. We have threats that we’re facing now to water that weren’t clearly in the minds of Congress back then. There are chemical compounds that chemical companies are creating and putting into the waterways that didn’t exist back then.
So if Congress had said: This is the list of pollution that is not allowed, the pollutants that you aren’t allowed to put in them — they would have missed a ton of things.
So they said: Here’s what pollutant mean — and the definition of pollutants, by the way, in the Clean Water Act is enormous. [Laughs.] It’s basically anything you put in there.
And it’s written that way, because of two reasons. One is the Congress knew it couldn’t predict exactly what was going to need to be protected in the future. And number two, there was this important entity in between Congress and the public. And that is these regulatory agencies. And the regulatory agencies are the ones that review the science, that conduct the studies, that pay for more science to be done to figure out how to actually implement these laws in a sensible way.
And, of course, those agencies aren’t, you know, running off completely on their own. They’re run by political appointees. So the people who are running those things are people who are selected by elected officials. And there’s very much political control over this. And Congress also can say — can step in and say: Hey, wait a minute, you the agency aren’t getting it quite right, we are going to rewrite the law in a certain way to fix things — which they did in 1977! So writing laws in a broad way gives scientific experts flexibility to write regulations that reflect what’s on the ground. And it allows those laws to serve future generations and to give you real protections for the environment, where very specific and narrowly worded things would need to constantly be updated — every year, if not every day.
JS: Yeah, well, it doesn’t seem that this 6-3 supermajority, super-conservative Court really likes this broad writing [laughs], because it maybe doesn’t fit with their sort of philosophy. I’m just kind of curious — it seems that they just kind of hate it. And maybe it has to do with the fact that they hate the regulatory state. Or I don’t know! This Court in particular — I mean, they don’t seem to like broadly written laws like these. And so I’m just kind of curious if you have any thoughts on that?
SS: Well, the Court has this broad animus — these judges were selected for their adherence to a philosophy that these unelected bureaucrats and EPA have no business deciding how these things should be done. Instead, these unelected judges, who are completely unaccountable politically, should be the ones deciding how these things get done.
So there’s a real hostility in this Court to the idea that scientific judgment, expertise, and process outside the courtroom or Congress should be a part of our nation’s regulatory structure. And that’s a profoundly deregulatory worldview, right? That’s profoundly one that leads you to a place where industries have more latitude and where protections get pulled back. And that’s why it’s always a one-way ratchet downwards when you have that kind of a view.
JS: And where the Cuyahoga River is suddenly ablaze again!
SS: That’s right! And this isn’t a great direction for the Court to be taking. And we’re not just seeing it, right, in the Clean Water Act: We’re seeing it in COVID protections; we’re seeing it in voting rights protections; we’re seeing it across the board, where the Court is pulling back on the role of protections in the government for people.
JS: So to end, I’d like to back up and get a broad view about what’s at stake in this case.
So maybe first, you could lay that out in terms of immediate impacts.
But then second, could you put it into the context of the climate crisis, and how what happens here might impact our ability to address climate change?
SS: Sure. Well let’s step through those from the bottom up.
So I would start by saying that in some of the worst case scenarios that one could imagine if the Supreme Court wrote its opinion in certain ways: Up to 45 million acres of wetlands could lose protections in this country. So 45 million acres of wetlands that you couldn’t pollute — you can’t pollute today — you suddenly could pollute. People could just say: Well, I can fill it in, I can pollute it, I can do whatever I want.
Next level: As climate change stresses our environment, removing the protections for all those wetlands, smaller waterways of all kinds, becomes all the more problematic, because we know that all these environments are deeply stressed by climate change already. We know that flooding and drought are becoming an increasingly big problem. So by taking away protections for waterways and wetlands, you’re exacerbating the scale of the climate crisis, right?
And then, at the third level, in order to combat the climate crisis, we’re going to need strong environmental laws and regulations. And we’re going to need expert agencies, figuring out how we can make all these things happen. How can we reform our transmission grid? What kind of pollution is okay? What kind of standards are not? How do we figure out how to reduce emissions from all kinds of different things in ways that are going to help us survive as a species, as a nation, as individuals. And if you have a Supreme Court that is profoundly anti-regulatory, you make it much more difficult for the government to actually do what most people want, which is confront those problems. More than three in four people support federal protections for water. Most people want the federal government to do more about climate change. And the Supreme Court is going in the other direction, taking the government out of the game at a time when it needs to be most in it.
JS: Sam, thank you so much for joining me.
SS: You’re more than welcome. Thank you for doing this. Anytime somebody wades into the Supreme Court, environmental law, whatever, I’m always eager to help out, because this is not easy stuff. [Laughs.] And it’s really important. But some issues like abortion or voting or whatever, people can naturally understand — you don’t need to read the law to understand what’s going on. But on things like this, somebody like you, you really have to dig in to kind of figure out what the questions should be, read the argument, try to figure out what the heck is going on. So I appreciate that you did that.
JS: And that’s it for this episode of Dissent, a production of The Intercept.
This episode was produced by Jose Olivarés and Laura Flynn. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show.
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If you want to give us feedback, email us at [email protected] Thanks so much.
Until next time, I’m Jordan Smith.