The Supreme Court just dealt a supreme blow to the Biden EPA’s Clean Water Act regulations on what they can control and what they can’t.
The Supreme Court on Thursday significantly shrank the reach of federal clean water protections, dealing a major blow to President Joe Biden’s efforts to restore protections to millions of acres of wetlands and delivering a victory to multiple powerful industries.
The ruling from the court’s conservative majority vastly narrowing the federal government’s authority over marshes and bogs is a win for industries such as homebuilding and oil and gas, which must seek Clean Water Act permits to damage federally protected wetlands. Those industries have fought for decades to limit the law’s reach.
Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett, wrote in the majority opinion that only those wetlands that are “indistinguishable” from those larger waters should be covered.
“Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Alito wrote.
The court’s liberals, joined by Justice Brett Kavanaugh, disagreed with that test, arguing that it cuts out a broad swath of wetlands that are important to Clean Water Act’s goal of protecting the nation’s waters.
The case was part of a married couple’s 15 year fight with the EPA to build a home on build their home on an empty lot near a large lake:
The Sackett case centers on a patch of wetlands on property owned by Chantell and Michael Sackett near Priest Lake, Idaho. The couple, who had planned to build their dream home on the property, have been tangling with EPA and the Army Corps of Engineers for a decade and a half over whether it should be subject to Clean Water Act permitting requirements.
The justices unanimously agreed that the couple’s specific wetlands should not be subject to Clean Water Act regulation, and that the court’s prior test, stemming from the 2006 case Rapanos v. United States, should no longer determine the scope of the law. For this reason, Kavanaugh’s opinion and a separate opinion from the court’s liberals, are considered to be concurring opinions.
The two wings of the court, however, remained sharply divided over what the new test for federal jurisdiction should be.
We are lucky that Roberts didn’t join Kavanaugh the liberals on the court giving the majority to them. I’m honestly surprised, but pleasantly so.