To a reasonable person, land is not water. If you fill a hole with dirt in your backyard distant from any body of water, you are not dumping pollutants into a federally protected body of water. Yet until recently, the federal government had accused people of doing precisely that and threatened them with tens of thousands of dollars in fines . . . per day. All of this comes from regulators who were enabled by and armed with an abstract, open-ended doctrine created by one former Supreme Court Justice. Thankfully, the Supreme Court corrected this sweeping overreach with its ruling last month in Sackett v. EPA. 

In the days following the release of the decision, a veritable chorus started repeating dire predictions that this would lead to the gutting and degradation of America’s wetlands and water quality. Notably, an unelected court is behind the claims of a radical change in policy. Instead, looking at the history of the application of the Clean Water Act (CWA) reveals an entirely different story. 

The issues argued in Sackett v. EPA were actually rooted in an earlier case. Rapanos v. United States was ruled in 2006, and Supreme Court Justice Kennedy’s singular opinion in the 4-1-4 split decision established a novel approach to interpreting the law. That approach relied neither on the legislative history nor the text of the law, and it created nearly two decades of controversy over the almost limitless power it granted to the federal government. The case centered around the actions of George Rapanos, who was developing property at least 11 miles from federally regulated waters, and the Environmental Protection Agency’s attempt to regulate and ultimately prevent the development under the CWA. 

Kennedy’s opinion granted the EPA the ability to regulate non-federal wetlands that happened to have a “significant nexus” to waters of the United States (i.e., federally managed water) through the CWA. Lo and behold, as interpreted and implemented by the EPA, a significant nexus, came to mean just about anything. Numerous near-farcical applications resulted from this expansive approach. Fortunately, and sensibly, in Sackett v. EPA, the court curtailed the federal government’s broad authority by imposing a simple and clear test requiring the EPA to demonstrate that a non-federally regulated body is indistinguishably connected to “Waters of the United States.”

The court’s 5-4 ruling affirmed the property rights of an Idaho couple caught in the regulatory crosshairs of the EPA. The Sacketts purchased an empty lot located near a wetland and, after receiving authorization from local authorities, began filling the space to construct their dream home. The family rationally assumed that their land was not a federally protected body of water subject to the CWA and, as such, that they were not illegally dumping pollutants. However, DC bureaucrats had other ideas. Armed with the significant-nexus test created under Rapanos, they took on the Sacketts.

The EPA told the Sacketts that the land being developed was actually protected waters, despite the fact that local officials had said otherwise. The regulators, undeterred, argued that they had jurisdiction over the Sacketts’ soggy plot of land because it happened to be near a man-made drainage ditch separated from the property by a 30-foot-wide road. That drainage ditch fed into a small creek, which had the potential to flow into federally regulated Priest Lake. Therefore, the EPA concluded that the Sacketts were illegally discharging pollutants into protected waters because they were filling the land they purchased with dirt and gravel to form the foundation of their home. It then ordered the Sacketts to tear down their project and restore the site to its natural state while threatening a $40,000 daily fine for noncompliance.

Justice Alito writing for the majority, noted the absurdity of the EPA’s interpretation. “Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”

If land can be considered water, no investment is sound, no property is truly owned. As the late Justice Antonin Scalia noted in Rapanos v. United States, the EPA was performing exactly this regulatory stunt, thereby claiming near-total jurisdiction.

The Future of the Court

In recent years, the Supreme Court is showing itself to be increasingly skeptical of complex, open-ended tests that substitute a plain reading of legal text and history with a pragmatic debate over competing interests. Such tests not only encourage a more ambiguous reading of the law but also make constitutional rights and separation of powers a case-by-case luxury rather than clearly defined, just principles.

Indeed, Kennedy’s concurrence in Rappanos was an attempt to bridge the gap between the progressive wing of the court with the Originalists rather than making a clear ruling on the CWA’s meaning. Rather than making sense of an unclear statute, his significant nexus test gave a power grant to the EPA that Congress never voted for or authorized. The opposite is true in last summer’s landmark case, West Virginia v. EPA, where the court struck down the EPA’s ability to unilaterally impose energy generation shifting requirements on power plants without clear congressional approval.

The Supreme Court may be gearing up to take another step towards restraining the government’s self-power granting abilities. In May 2023, the court granted certiorari to Loper Bright Enterprises v. Raimondo, a case that may limit or overrule Chevron Deference, a controversial twentieth-century doctrine that states courts must defer to a regulatory agency’s interpretation of the law when the text is silent or ambiguous. In this case, a group of fishermen is challenging an agency’s authority to compel them to hire a boat inspector.

Although Congress authorized the National Marine Fisheries Service to require such inspectors on fishing boats, it did not authorize the agency to force the fisherman to pay for the service. Under Chevron Deference, the lower courts deferred to the regulators and allowed them to invent new powers, which drastically departs from how the role of the judicial system was imagined. The court’s willingness to reconsider the validity of Chevron Deference is yet another signal of its intention to reemphasize the court system’s role in clarifying the just limits of state power.

The Supreme Court’s shift away from open-ended tests and more lenient boundaries on state discretion is further signified by the departure of Justice Breyer, who is the most prominent advocate of complicated, multipart balancing-of-interests tests. Indeed, Breyer’s 2008 dissenting opinion in District of Columbia v. Heller argued that the 2nd Amendment right to bear arms can be curtailed as long as the regulation is not “unreasonable or inappropriate.”

Breyer’s view of adopting an “interest-balancing inquiry explicitly” (the interests of the citizens to own firearms vs. the government’s interests in regulating guns) stood in stark contrast to Justice Scalia’s majority opinion. Scalia’s opinion, which would become a hallmark originalist victory, would frame 2nd Amendment rights as a categorical yes or no question based on established patterns of permissible firearms usage. In other words, drawing a clear line for what the state can and cannot regulate.

Similarly, the Sackett v. EPA decision finally restores some level of rationality to the regulatory process surrounding the CWA. It will protect the rights of property owners while leaving intact the original purpose and goal of the CWA. Claims that the court is pursuing an open assault on environmental protections are overheated and polemical. This case is a vital check on runaway agency discretion.