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The Supreme Court on Thursday cut back the <a href="https://www.washingtonpost.com/politics/2022/01/24/supreme-court-clean-water-act/?itid=lk_inline_manual_2" target=_blank>power of the Environmental Protection Agency to regulate the nation’s wetlands</a>, another setback for the agency’s authority to combat air and water pollution.

At issue was the reach of the landmark 51-year-old Clean Water Act and how courts should determine what count as “waters of the United States” under protection of the law. Nearly two decades ago, the court ruled that wetlands are protected if they have a “significant nexus” to nearby regulated waters.

Justice Samuel A. Alito Jr., <a href="https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf" target=_blank>writing for himself and four other of the court’s conservatives</a>, rejected that test and imposed one that environmentalists say will remove millions of acres of environmentally sensitive land from federal regulation.

“We hold that the CWA extends to only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters,” Alito wrote, quoting from past court opinions. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett.

All of the justices agreed that federal regulators went too far in the case at hand, which involved an Idaho couple’s quest to build a home near a lake. But instead of a narrow decision saying just that, the court majority sided with a decades-long effort by property rights groups and businesses to narrow regulations to wetlands and other areas directly connected to “navigable waters” such as rivers and lakes.

Justice Elena Kagan objected on behalf of the court’s liberals, saying her conservative colleagues on Thursday showed the same zeal they had displayed last term in limiting the EPA’s ability to combat climate change.

There, the majority “barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands,” wrote Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

“The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.”

All three justices joined an opinion by Justice Brett M. Kavanaugh, who had been in the majority in the climate change case.

He wrote that the majority’s new test “departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents” and will have “significant repercussions for water quality and flood control throughout the United States.” He mentioned levee systems along the Mississippi River and projects to clean up the Chesapeake Bay as initiatives that might suffer under the majority’s new rules.

Illustration of a court justice's arm holding a gavel over falling pillars and the roof of the U.S. Supreme Court building surrounded by wetland grasses, graduation caps, outlines of states and a computer cursor. 

Chloe Cushman for SCOTUS2023Cases

We’re tracking <a href="https://www.washingtonpost.com/politics/2023/05/11/supreme-court-decisions/" target=_blank>how the Supreme Court justices ruled on the major cases of 2023</a>.

The ruling affects one of the most fundamental authorities at the EPA, its ability to extend protections to upstream waters in order to protect downstream water quality for drinking and wildlife. It will prevent the agency from putting federal protections on as much as 118 million acres of wetlands, an area larger than the landmass of California, according to estimates from the environmental firm Earthjustice.

It gives a win to farmers, home builders and other developers that will now probably find it easier to get permits to build, lawyers and trade groups said. And it probably will force the Biden administration to abandon — or at least restart — an effort it began in 2021 to resolve years of uncertainty with new definitions on the type of waterways EPA rules can protect, leaving more of that power up to state governments, lawyers and legal experts said.

“I don’t see how they get away from that,” said attorney Rafe Petersen, who represents miners, offshore wind developers and others seeking EPA permits for the firm Holland &amp; Knight. “The Biden administration is really boxed into the corner.”

The impact will vary from state to state, said Jonathan H. Adler, a law professor at Case Western Reserve University, depending on how stringently those jurisdictions regulate wetlands and other issues.

Administration officials called the decision a disappointment that erodes long-standing protections. And officials at both the EPA and the White House said administration lawyers will be reviewing the ruling to determine President Biden’s next steps.

The president in a statement called it a “disappointing decision” that “will take our country backwards.”

“Today’s decision upends the legal framework that has protected America’s waters for decades,” Biden said. “It also defies the science that confirms the critical role of wetlands in safeguarding our nation’s streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities.”

The justices were reviewing for a second time the plans of Michael and Chantell Sackett, who want to build a home on their property near Priest Lake, one of the Idaho’s largest. The EPA says there are wetlands on the couple’s 0.63-acre lot, which makes it subject to the CWA and allows the government to require permits and impose penalties for violations.

Environmental advocates asked the court to <a href="https://www.washingtonpost.com/politics/2022/10/03/supreme-court-clean-water-act/" target=_blank>retain the government’s authority to protect and regulate waterways</a> that significantly affect downstream water quality and warned that developers would take advantage of weaker regulations. Under the Sacketts’ proposed definition of the law, they said, about half of all wetlands and roughly 60 percent of streams would no longer be federally protected.

Along with other legal observers, Petersen said the latest ruling could have far-reaching consequences. Alito’s decision says the court requires Congress “to enact exceedingly clear language” on rules that may affect private property, which some lawyers said may bring a new level of scrutiny to other bedrock environmental standards aimed at addressing air pollution and climate change.

“This can be read to call into question virtually any modern environmental regulation,” said Sam Sankar, senior vice president for programs at Earthjustice, which filed briefs in the case on behalf of 18 Native American tribes. “Polluters will certainly read this as an indication it’s open season on environmental law.”

Adler said he was unsure about that. “I don’t think there’s anything new” in Alito’s requirement of a clear statement in the law, he said. But he agreed the court is certainly showing a skepticism of agency powers and its broad readings of statutes.

How Supreme Court’s EPA ruling will affect U.S. wetlands, clean water

In a sense, the court was revisiting a decision it made 17 years ago, when it also was divided on the question. In that case, Rapanos v. United States, Justice Antonin Scalia wrote for four justices that only wetlands with “a continuous surface connection” to “relatively permanent” bodies of water can be regulated under the law.

But the prevailing test in Rapanos was one from now-retired Justice Anthony M. Kennedy, who said there needs to be only a “significant nexus” between the wetlands and the regulated waters.

Adler noted that none of the justices endorsed the “significant nexus” rule, and Alito’s test in essence substitutes the Scalia test.

Alito praised the Clean Water Act as a “great success” but also said it could be a “potent weapon” for federal regulators.

“Regulation of land and water use lies at the core of traditional state authority,” he wrote. “An overly broad interpretation of the CWA’s reach would impinge on this authority. The area covered by wetlands alone is vast — greater than the combined surface area of California and Texas. And the scope of the EPA’s conception of ‘the waters of the United States’ is truly staggering.”

Kagan said Alito’s emphasis was wrong. She said he puts “a thumb on the scale for property owners — no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”

Kavanaugh said the majority was misinterpreting the law’s language. All agree that wetlands adjoining regulated waters are included, he said, but it also provides for those adjacent to the waters.

Throughout 45 years “and across all eight Presidential administrations, the Army Corps has always included in the definition of ‘adjacent wetlands’ not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a manmade dike or barrier, natural river berm, beach dune, or the like,” Kavanaugh wrote. His opinion was joined by Kagan, Sotomayor and Jackson.

“We should not create ambiguity where none exists,” Kavanaugh wrote. “And we may not rewrite ‘adjacent’ to mean the same thing as ‘adjoining,’ as the Court does today.”

The Sacketts, backed by the conservative Pacific Legal Foundation, obtained a local building permit 15 years ago to begin construction on their land, about 300 feet from the lake. Their plot is bounded on two sides by roads and separated from the lake by a row of homes.

The EPA put the plans on hold, threatening fines of more than $40,000 per day if the Sacketts did not stop construction. The couple went to court to block the EPA order and asked the justices to narrow the definition of “waters of the United States” so that their land is not covered by the Clean Water Act.

The fight over what constitutes a wetland subject to the CWA has raged for decades. The George W. Bush administration first issued guidance limiting the reach of the Clean Water Act in 2003 and <a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/12/02/AR2008120203055.html" target=_blank>2008</a>, after earlier Supreme Court decisions.

In 2015 the Obama administration widened the scope of the law to cover even ephemeral streams and ponds. North Dakota, Wyoming, Alaska and other states immediately sued in federal court, resulting in a nationwide stay from a federal appeals court in Ohio. As the challenges dragged on and led to a slew of different rulings, the Trump-era EPA repealed the rule and <a href="https://www.washingtonpost.com/climate-environment/administration-finalizes-repeal-of-2015-water-rule-trump-called-destructive-and-horrible/2019/09/11/fddfa49a-d4aa-11e9-9343-40db57cf6abd_story.html?itid=lk_inline_manual_4" target=_blank>in 2019 created a new, weaker one.</a>

<a href="https://www.washingtonpost.com/climate-environment/2022/12/30/biden-epa-wetlands-regulation/" target=_blank>The Biden administration has tried to strike a balance</a> by undoing the Trump-era rule and redefining EPA oversight as covering “traditional navigable waters,” including interstate waterways and upstream water sources that influence the health and quality of those waterways.

The case is Sackett v. Environmental Protection Agency.

University of Florida

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006.

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Northwestern University, BS in Journalism

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Timothy Puko is a reporter covering climate policy and politics for The Washington Post. He has been covering energy and climate policy, and geopolitics from Washington since 2017 and joined The Post in October 2022. He previously covered energy commodity markets from New York and the environment and energy industry in Pennsylvania.

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Nieman fellow, Harvard University

Cornell University

Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland.

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Supreme Court weakens EPA power to enforce Clean Water Act

Justice Samuel A. Alito Jr., writing for a five-justice majority, said the EPA’s interpretation of its powers went too far