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Justices sharply limit EPA’s power over water pollution
Dissenting Kavanaugh says it threatens flood control on the Mississippi
Gazette staff and wires
May. 25, 2023 3:20 pm
WASHINGTON — The U.S. Supreme Court on Thursday sharply limited the federal government's authority to police water pollution in certain wetlands, bringing praise from Iowa’s Republican politicians as a win for farmers but warnings from environmental groups worried about the effect on clean water and flooding.
Thursday’s ruling was the second decision in as many years in which a conservative majority narrowed the reach of federal environmental regulations.
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 in that state’s panhandle. Chantell and Michael Sackett objected when officials identified a soggy portion of the property as a wetlands that required them to get a permit before filling it with rocks and soil.
By a 5-4 vote, the court said in an opinion by Justice Samuel Alito that wetlands can be regulated under the Clean Water Act only if they have a “continuous surface connection” to larger, regulated bodies of water. There is no such connection on the Sacketts’ land.
The court jettisoned a 17-year-old opinion by their former colleague, Anthony Kennedy, allowing regulation of what can be discharged into wetlands that could affect the health of the larger waterways. Kennedy's opinion covering wetlands that have a “significant nexus” to larger bodies of water had been the standard for evaluating whether permits were required for discharges under the 1972 landmark environmental law.
The outcome almost certainly will affect ongoing court battles over new water regulations, including for wetlands, that the Biden administration put in place in December. Two federal judges have temporarily blocked those rules — called WOTUS, or Waters of the U.S. — from being enforced in 26 states, including Iowa.
“The federal government has no authority to impose blanket jurisdiction over puddles, waters, and wetlands with vague, overreaching regulations on behalf of Biden’s ever-changing climate agenda,” said a statement from Republican Sen. Joni Ernst of Iowa. “This is a big WIN for Iowa, where nearly every industry is impacted by WOTUS, including 46,000 small businesses and countless farmers. I’ve long fought to put in place a permanent, clear, and commonsense WOTUS definition, and will continue working to bring much-needed certainty to Iowa’s job creators.”
Said a statement from U.S. Rep. Randy Feenstra, a Republican from Northwest Iowa: “I am thrilled that the Supreme Court ruled in favor of America’s heartland over President Biden’s radical EPA. This is a huge win for Iowa farmers and rural America.”
But the ruling could threaten efforts to control flooding on the Mississippi River and protect the Chesapeake Bay, among many projects, wrote Justice Brett Kavanaugh, breaking with the other five conservatives.
Environmental advocates said the decision would strip protections from tens of millions of acres of wetlands.
“Wetlands hold and filter out pollutants, they retain stormwater and reduce flooding, they provide critical habitat for wildlife, and they soak up carbon,” said a statement from the Environmental Law and Policy Center, a Chicago group focusing on the Midwest and Great Lakes. “But now, contrary to the science and contrary to everyone’s reasonable expectations, most of those wetlands are going to lose federal protection. The Court clearly got this one wrong, at great cost to the environment and to taxpayers.”
In Thursday's ruling, all nine justices agreed that the wetlands on the Sacketts’ property are not covered by the act. But only five justices joined in the opinion that imposed a new test for evaluating when wetlands are covered by the Clean Water Act.
Chief Justice John Roberts, Justice Clarence Thomas and Alito would have adopted the narrower standard in 2006, in the last big wetlands case at the Supreme Court. They were joined Thursday by Justices Neil Gorsuch and Amy Coney Barrett.
Last term, the court's conservative majority also restricted the EPA's authority to curb emissions from power plants. Justice Elena Kagan wrote for the court's liberals, comparing this ruling with that one.
"The vice in both instances is the same: the Court's appointment of itself as the national decision-maker on environmental policy," she wrote.
The Associated Press and the Washington Post contributed to this report.