Trump Rolled Back Decades Of Clean Water Protections. The Supreme Court Just Went Even Further.
Alexander C. Kaufman, Chris D’Angelo – May 26, 2023
More than three decades ago, a Michigan man named John Rapanos tried to fill in three wetlands on his property to make way for a shopping center. State regulators warned him that doing so was illegal without federal Clean Water Act permits. Rapanos argued that you couldn’t navigate a boat from his wetlands to a federal waterway, so the Environmental Protection Agency had no jurisdiction on his land. When Rapanos ignored the EPA’s cease-and-desist letters, the government successfully brought a civil lawsuit against him, which he then vowed to “fight to the death.”
Instead, he made it all the way to the nation’s highest court. In a split decision in 2006, the Supreme Court overturned the judgment against Rapanos, but did not reach a majority ruling on whether wetlands that flowed into federally regulated “waters of the United States” qualified for the same protections.
In 2016, President Barack Obama sought to answer that question with a new EPA rule extending the Clean Water Act of 1972 to include millions of acres of marshes, bogs and lagoons whose water — and any pollution added to it — channel into already federally regulated waterways.
Republicans chided the move as a federal land grab, while environmentalists cheered what they saw as a reasonable interpretation of the decadesold law through the lens of the latest science shows about hydrology and the increasing threat of extreme droughts and toxic algae blooms.
In 2020, President Donald Trump rolled back much of the rule’s protections, slashing the total protected area of wetlands roughly in half. In 2022, President Joe Biden moved to restore the Obama-era rule.
On Thursday, the Supreme Court’s new right-wing supermajority revisited the 2006 decision to strike down federal protections for virtually all the wetlands Trump deregulated — and then some, eliminating even the few safeguards the Republican administration tried to preserve.
An environmental advocate holds up a sign during a rally outside the Supreme Court in October. (Photo by Paul Morigi/Getty Images for Protect our Waters)
The 5-4 decision — written by Justice Samuel Alito, and joined by Justices John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — revoked the Clean Water Act’s authority over at least 59 million acres of wetlands across the U.S., according to an estimate by the environmental group Earthjustice.
“You’re going to see the Clean Water Act significantly scaled back in terms of coverage,” said Duke McCall, a partner who specializes in federal water rules at the law firm Morgan Lewis. “The impacted waters are going to be significantly narrowed.”
The Obama administration included any wetlands linked to existing federal waterways via underground aquifers or streams. The Trump EPA narrowed the scope to only include wetlands with visible surface connections to rivers, lakes and other long-standing “waters of the United States.” But the Republican administration made an exception for wetlands cut off from federal waterways via a berm, bridge or other artificial barrier.
The court granted no such leeway, instead dismantling nearly half a century of established federal jurisdiction over wetlands — a fact that conservative Justice Brett Kavanaugh noted in his dissenting opinion.
At the very least, the ruling takes the U.S. back to the mid-1970s, to the early days of the Clean Water Act, said Emily Hammond, an energy and environmental law professor at George Washington University. But Hammond stressed it could be worse than that, noting that the majority’s opinion repeatedly cites the Supreme Court’s 1870 decision in The Daniel Ball case, which found that waterways are “navigable” only if they are “navigable in fact” and used for interstate or foreign commerce.
“It’s always been understood, I think, by courts and by Congress and by agencies that when Congress used the term ‘waters of the United States’ it meant to go further than that ‘navigable in fact’ standard that Daniel Ball stood for,” Hammond said. “To see the majority now citing that old decision suggests their eye is to shrink the scope of the Clean Water Act down back to where it would have been before we had a Clean Water Act.”
“In some ways, this takes us back that far,” Hammond said, referring to the 1870 case.
Kavanaugh wrote that while the last eight previous administrations dating back to 1977 “maintained dramatically different views of how to regulate the environment, including under the Clean Water Act,” all of them “recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like.”
Thursday’s ruling, he argued, will have “negative consequences for waters” across the country.
“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote.
Michael and Chantell Sackett of Priest Lake, Idaho, pose for a photo in front of the Supreme Court in Washington on Oct. 14, 2011. The Supreme Court on Thursday, May 25, 2023, made it harder for the federal government to police water pollution in a decision that strips protections from wetlands that are isolated from larger bodies of water. The justices boosted property rights over concerns about clean water in a ruling in favor of an Idaho couple who sought to build a house near Priest Lake in the state’s panhandle.
The ruling is part of what liberal Justice Elena Kagan views as a clear trend by the court to curb the federal government’s legal authority to regulate pollution in an era of dramatic ecological upheaval — when other countries are taking drastic steps to preserve some semblance of nature’s current biodiversity and order. Last year, the Supreme Court drastically limited EPA’s authority to curb power plant emissions under the Clean Air Act.
“The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy,” Kagan wrote. “So I’ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. ‘[T]he Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.’”
Last year, the Supreme Court took the unusual step of hearing a case on a defunct power plant regulation — the high court typically rejects suits with no active legal bearing — in what was widely seen as an attempt to preemptively stop the Biden administration from reviving a controversial Obama-era rule. The court’s six conservative justices, including Kavanaugh, ruled in favor of permanently sealing off the legal avenue the Obama administration took to justify parts of its Clean Power Plan regulation.
The conservative justices’ apparent partisan agenda is hardly the only perceived conflict of interest sowing mistrust in the nation’s highest court. The Trump-appointed Barrett, whose father spent much of his career working for Royal Dutch Shell, declined to recuse herself from key cases involving the oil giant, even as Justice Samuel Alito stepped aside over his disclosed investments in oil and companies.
The investigative news outlet ProPublica published a series of exposés over the past month revealing that Thomas, who was appointed by President George H. W. Bush, failed to disclose private jet trips and land deals he received from billionaire real-estate developer Harlan Crow. The National Multifamily Housing Council, which has close ties to Crow — the CEO of Crow Holdings Inc. is also the chair of that group, and three of Crow’s companies are dues-paying members — filed an amicus brief on an earlier iteration of this case, as HuffPost’s Paul Blumenthal reported.
Republican lawmakers celebrated Thursday’s decision as a win for family farmers crushed under the boot of regulators seeking to make living off the land ever harder and more complicated.
“In a huge win for farmers, ranchers, small business owners, and families — the Supreme Court has ditched the Obama/Biden WOTUS rule overreach once and for all,” Rep. Sam Graves (R-Mo.) wrote in a statement.
But while “farmers and small business owners have been held up” as the most sympathetic victims of purported government overreach, McCall said “developers are a huge affected group who have been strong opponents” of expanded wetland protections.
Another way that Thursday’s ruling turns the clock back to before the Clean Water Act was passed in 1972 is by effectively restoring a variable patchwork of state water rules, Hammond said.
“The Clean Water Act was designed of course to create some floor among the states so that we wouldn’t have the race to the bottom, polluters moving to states where they could pollute more because the policies were more lenient,” they said. “This decision so dramatically undermines the Clean Water Act that we do in a sense go back to the times of significant disparities among the states in terms of protections for our waters.”
“These kinds of decisions are starting to add up,” Hammond added. “There’s no doubt there will be cumulative impacts and we’ll see shifts as a result.”
CORRECTION: A previous version of this story suggested the facts of the Rapanos case occurred in the 2000s. They occurred in the 1980s.