“By narrowing the act’s coverage of wetlands to only adjoining wetlands,” he wrote, “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.”
In a second concurring opinion, Justice Elena Kagan, referring to the court’s decision in June to curtail the E.P.A.’s ability to restrict power plant emissions, criticized the majority’s interpretation of the law.
“There,” she wrote, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”
The ruling was also another example of the court’s skepticism of the authority of administrative agencies, said Jonathan H. Adler, a law professor at Case Western Reserve University. “The current court,” he said, “is clearly unwilling to defer to an agency about the scope of that agency’s own power.”
Damien Schiff, a lawyer with the Pacific Legal Foundation, which represents the homeowners in the case, welcomed the Supreme Court’s decision. “Courts now have a clear measuring stick for fairness and consistency by federal regulators,” he said in a statement. “Today’s ruling is a profound win for property rights and the constitutional separation of powers.”
Michael Regan, the administrator of the E.P.A., said the agency would consider next steps. “I am disappointed by today’s Supreme Court decision that erodes longstanding clean water protections,” he said in a statement.
The case, Sackett v. Environmental Protection Agency, No. 21-454, concerned an Idaho couple, Michael and Chantell Sackett, who sought to build a house on what an appeals court called “a soggy residential lot” near Priest Lake, in the state’s panhandle.
