On Thursday, the Supreme Court dealt a devastating blow to the nation’s wetlands by rewriting a statute the court does not like to mean something it does not mean. The court’s decision in Sackett v. EPA is one of the its most egregious betrayals of textualism in memory. Put simply: The Clean Water Act protects wetlands that are “adjacent” to larger bodies of water. Five justices, however, do not think the federal government should be able to stop landowners from destroying wetlands on their property. To close this gap between what the majority wants and what the statute says, the majority crossed through the word “adjacent” and replaced it with a new test that’s designed to give landowners maximum latitude to fill in, build upon, or otherwise obliterate some of the most valuable ecosystems on earth.
Justice Samuel Alito’s opinion for the court is remarkably brazen about this approach—so brazen that Justice Brett Kavanaugh (of all people!) authored a sharp opinion accusing him of failing to “stick to the text.” Alito began with a long history of the Supreme Court’s struggles to identify the “outer boundaries” of the Clean Water Act, as if to explain why the time had come for the court to give up wrestling with the text and just impose whatever standard it prefers. The law expressly protects “waters of the United States” (like rivers and lakes) as well as “wetlands adjacent” to these waters. Congress added the wetlands provision in 1977 to codify the EPA’s definition of “adjacent,” which also happens to be the actual definition: “bordering, contiguous, or neighboring.” Under that interpretation—the one Congress adopted—wetlands that neighbor a larger body of water remain protected, even if they aren’t directly connected.
Why did Congress make that choice? Because wetlands provide immense environmental benefits: They filter and purify water draining into nearby streams, rivers, and lakes. They slow down runoff into these larger bodies. And they serve as vital flood control. In other words, the Clean Water Act has to protect “adjacent” wetlands to serve its overarching goal of safeguarding the broader “waters of the United States” from pollution.
Too bad, Alito wrote: We don’t like the definition that Congress used. It could lead to “crushing” fines for landowners and interfere with “mundane” activities like “moving dirt.” It interferes with “traditional state authority.” And it could give the EPA “truly staggering” regulatory authority. Five justices on the Supreme Court think all of that is very bad. So they declared that, instead of applying the statute’s words, the court would impose a different standard: Only wetlands with “a continuous surface connection” to larger bodies of water merit protection under the Clean Water Act.
This definition—which, it just can’t be stressed enough, appears nowhere in the law—is a crushing defeat for wetlands and their protectors. These ecosystems, as Kavanaugh pointed out, are frequently separated from larger bodies of water by “man-made dikes or barriers” as well as “natural river berms, beach dunes, or the like.” Such wetlands “play an important role in protecting neighboring and downstream waters,” which is why Congress included them in the statute. But under the majority’s new test, they are stripped of federal protection.
Moreover, many wetlands have a periodic connection to bigger nearby waters that ebbs and flows with seasons, rainfall, and other natural factors. Some maintain a continuous connection underground while appearing to be disconnected on the surface. For nearly 50 years, the EPA has shielded these areas from destruction. Now they are in open season for developers, because they lack a “continuous surface connection” to neighboring waters. Millions of acres of wetlands just lost federal protection in one fell swoop.
Kavanaugh’s opinion did an admirable job explaining the totally ahistorical and atextual nature of Alito’s new test. But it was, as usual, Justice Elena Kagan—joined by Justices Sonia Sotomayor and Ketanji Brown Jackson—who laid bare the true motivation for the majority’s decision. (Because all the justices agreed on the outcome of this case, while disagreeing about everything else, Kavanaugh and Kagan’s opinions are styled as a “concurrence in the judgment,” but they are effectively dissents from Alito’s indefensible new standard.) Five justices, Kagan explained, think the Clean Water Act’s “plain instructions” go “further than preferred.” She continued: “Surely something has to be done; and who else to do it but this court? It must rescue property owners from Congress’s too-ambitious program of pollution control.” Drawing a comparison to last term’s similarly egregious West Virginia v. EPA, Kagan described the court’s “appointment of itself as the national decision-maker on environmental policy.” Assuming that unearned role, the majority has once again chosen “to cabin the anti-pollution actions Congress thought appropriate.”
If you want to feel really cynical about the Supreme Court—if you want to see how a majority has an infinite number of tools at its disposal to override the words that Congress wrote and instead enshrine a conservative agenda into law—read Alito’s opinion in Sackett. Honestly, it’s like he’s barely even trying. Alito’s response to Kavanaugh and Kagan consists of one short paragraph that boils down to four words: Their opinions “cannot be taken seriously.” Alito relied almost entirely on policy arguments, peppering them with legalese to create the impression of an actual legal opinion. It doesn’t work, but who cares? The court has anointed itself the final arbiter of every controversy in the land, and if it thinks the Clean Water Act goes too far, then, well, it’s the court’s sacred duty to rewrite it. As Kagan put it ruefully: “That is not how I think our government should work,” because “it is not how the Constitution thinks our government should work.”
Sadly, this is how our Supreme Court now works.
