Brute force and the reactionary SCOTUS majority's assault on clean water

Justice Sam Alito’s five-justice majority, including Chief Justice John Roberts, upended 45 years of agency and court interpretations of the Clean Water Act — and the law itself.

The environment is worse off this Friday morning than it was just 24 hours ago.

Worse still, a five-justice reactionary majority of the U.S. Supreme Court made it clear on Thursday that not only will this court stop the executive branch from taking actions with which it disagrees as a policy matter because those actions seek to do too much, but that congressional decisions themselves can suffer a similar fate.

Although Thursday’s U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency was largely framed as another case halting executive branch rules and priorities, it was more than that.

In Sackett, Justice Sam Alito returned to his favorite role on the post-2020 U.S. Supreme Court: Taking a five-justice majority and using it to ignore and upend longstanding precedent and practice in service of his partisan aims. Last term, the case was Dobbs v. Jackson Women’s Health Organization and his target was abortion. On Thursday, his target was clean water. Or, to be more specific, the federal government’s ability to protect water from pollution.

The legal question the court faced was about the test courts use to decide “whether wetlands are ‘waters of the United States’ under the Clean Water Act.” Owners of covered property need to seek a permit to be exempted from the limitations of the law if they wish to build or take other action that would otherwise violate the law.

Figuring out the specific test and the rules that go along with that are, admittedly, a topic that the court and agencies, respectively, have struggled with pretty much since the law’s passage. Part of that, however, is a reflection of politics. As administrations changed, particularly in recent years, the precise scope of rules changed. There was, however, some consistency.

As Justice Brett Kavanaugh wrote:

Alito, however, decided to ignore all of that. And he did so in an opinion for the court that had the votes of Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.

The new rule set by those five justices limits what wetlands are covered by the Clean Water Act so that less wetland area is protected than at any time in the past 45 years.

The rule, Alito wrote for the court, is now that the Clean Water Act “extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.”

That was a step too far for Kavanaugh, who just last year joined Thursday’s five-justice majority in a six-justice decision quashing at least one vein of administrative efforts to combat climate change under the Clean Air Act as violating the amorphous “major questions” doctrine.

On Thursday, though — for himself and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — Kavanaugh wrote, “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.”

Kagan — writing for herself, Sotomayor and Jackson — indirectly laid out the long-term implications of Thursday’s decision.

“Today’s majority … believes Congress went too far,” she wrote, latter describing the majority’s reasoning as “an effort to cabin the anti-pollution actions Congress thought appropriate.”

There is nothing — other than securing five votes — keeping this court from taking whatever similar actions they desire to limit the effect of other laws in the future.

A short history of how we got here.

The test that had been applied by the U.S. Court of Appeals for the Ninth Circuit in considering the case was tossed out on Thursday unceremoniously, garnering no support from anyone on the Supreme Court.

No one disagreed that the Sacketts should win their particular case, either, meaning that this case could have been disposed of quickly. But, because of the decision by Alito and the majority to adopt its new test, there was an unusual situation on Thursday in that decisions calling the majority opinion “erroneous,” as Kavanaugh put it, and “not how the Constitution thinks our Government should work,” as Kagan put it, are technically opinions concurring in the judgment.

While ultimately somewhat unimportant, then, to the 5-4 dispute between today’s justices, the rejection of the test used by the Ninth Circuit is an important part of understanding the story of how far to the right today’s court has gotten.

That test, referred to as the “significant nexus” test, asked whether the wetland in question has a “significant nexus” to “navigable waters” — the sort of waters that were clearly seen as capable of being subjected to federal regulation under the Commerce Clause.¹

In the discussion in Thursday’s opinions, it is referred to as a one-justice opinion expressed by then-Justice Anthony Kennedy in Rapanos v. United States, a 2006 case where four justices — including Roberts, Thomas, and Alito — were to Kennedy’s right and four justices were to his left in their views on how to interpret the law.

In that 2006 opinion, Kennedy wrote that courts should consider “whether the specific wetlands at issue possess a significant nexus with navigable waters.”

It was apparent at oral arguments at the Supreme Court in October 2022 in the Sacketts’ case that the test might not be able to get a majority’s support. The Sacketts’ lawyer went first that day. By time the Justice Department lawyer got up, he made clear from the start of his time at the podium that it wasn’t the “significant nexus” test that was ultimately at issue: “The narrow but important question presented in this case is whether wetlands lose protection if they're separated from other waters by a barrier like a berm or a road.” The lawyer, Principal Deputy Solicitor General Brian Fletcher, went on to note the “essentially undisputed scientific evidence” that supports the interpretation since 1977 that such wetlands should be covered by the law.

On Thursday, though, Alito’s five-justice majority opinion upended 45 years of agency and court interpretations and decided that such wetlands are not, in fact, protected under the Clean Water Act.

Alito was at his dry, sarcastic, acerbic worst:

The EPA argues that “waters” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands.’” Brief for Respondents 19. But that reading proves too much. Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as “waters.”

To see how far afield we have gone, I’ll allow another justice, from another era, to respond:

On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under §404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.

Then-Justice Byron White wrote that for a unanimous court dealing with these questions in 1985, holding that “the evident breadth of congressional concern for protection of water quality and aquatic ecosystems suggests that it is reasonable for the Corps to interpret the term ‘waters’ to encompass wetlands adjacent to waters as more conventionally defined.”

Explaining his view of the important factors behind that case 16 years later, it was none other than then-Chief Justice William Rehnquist who, in 2001, wrote for the court that it was “the significant nexus between the wetlands and "navigable waters" that informed our reading of the” law in the 1985 case. By that time, there was already a split: Four justices dissented, believing that Rehnquist was pushing too cramped a reading of the law. Then-Justice John Paul Stevens wrote for the dissenters that “the Court dr[ew] a new jurisdictional line” with the decision — limiting the law’s reach to “actually navigable waters, their tributaries, and wetlands adjacent to each.”

Five years later, in Rapanos, Kennedy was quoting from Rehnquist’s opinion — already viewed by more liberal justices as a narrowed interpretation of the Clean Water Act — when he described the “significant nexus” test.

Which brings us to this week.

For today’s court, even Rehnquist’s position is too much — dismissed as a one-justice concurrence from Kennedy.

Then, having pushed Kennedy (and Rehnquist) aside, Alito was able to go further — turning the four-justice opinion that he had joined in Rapanos into the latest, even-more-narrow interpretation of the Clean Water Act.

Far from White’s discussion of “congressional concern for protection of water quality and aquatic ecosystems,” Alito was focused on money and power. Calling the anti-pollution law a “potent weapon,” Alito quickly made clear that was not a compliment, instead writing about everything the law does in seeking to protect the environment only in terms of how those restrictions put landowners in a “precarious position.” And, yes, Alito does put “pollutant” in scare quotes.

This re-definition of a law from the 1970s by today’s court is a decision held up by brute force and the power of five votes. Now that they have a majority that can do so, they did it.

Kavanaugh — for himself and the three Democratic appointees — described his concern with “[t]he Court’s erroneous opinion,” writing bluntly, “The Court’s mistake is straightforward: The Court essentially reads ‘adjacent’ to mean ‘adjoining.’ As a result, the Court excludes wetlands that the text of the Clean Water Act covers — and that the Act since 1977 has always been interpreted to cover.”

It was not a difference of opinion, Kavanaugh made clear. The majority is flat-out wrong. Later on that page, in a footnote: “As a matter of ordinary meaning, as explained at length above, that is incorrect.” And, then, a couple pages later, “By adopting a test that substitutes ‘adjoining’ for ‘adjacent,’ the Court today errs.“

Or, as Kagan wrote, “[A] court may not rewrite Congress’s plain instructions because they go further than preferred.”

With five votes, though, that is exactly what Alito did on Thursday. And it is exactly what this court’s majority, left to its own devices, will continue to do.

1. A slight caveat, or aside, here. Justice Clarence Thomas wrote a concurring opinion for himself alone that would go even further than Alito’s opinion. He literally wrote that he was doing so “to pick up where the Court leaves off.” At points in that concurrence, Thomas directly or indirectly questioned much of the court’s modern Commerce Clause jurisprudence — although not for the first time — and specifically did so here in terms of the Clean Water Act and what he skeptically called the EPA’s interpretation of it in alignment with “the full extent of Congress’ New Deal era authority.”