The Supreme Court took another step Thursday in its crusade to limit the power of the U.S. Environmental Agency (EPA). The high court sided with the Sackett couple in their fight, of almost 15 years, to build a house about 100 meters from Lake Priest, in Idaho. He was prevented from doing so by the EPA, whose experts believed his land likely contained wetlands and was therefore subject to the 1972 Clean Water Act, which prevents the dumping of pollutants, sand, cement and other construction materials. The ruling rules that this rule, open to interpretation, only protects wetlands that have a "continuous connection on the surface". The ruling comes a year after the Supreme Court limited the EPA's scope to combat pollution under the Clean Air Act.
All nine justices agreed on the substance of the ruling: The EPA was not the one to decide whether or not the Sacketts could build on their property. But that unanimity was broken when sharing the arguments of the majority opinion, which totals five justices and is signed by the conservative Samuel Alito.
Unclear
At the beginning of that opinion, Alito writes that the Clean Water rule was "a great success," and that, prior to its passage, "rivers, lakes and streams were severely polluted." It also considers that it was born defective because it was unclear in the correct interpretation of the scope of the term "United States waters". Alito recalls that the Supreme Court tried to unify criteria on three previous occasions, the last one, 17 years ago. "The scope of the Clean Water Act is notoriously unclear," he says at another point in his argument. "Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as covered wetlands by law, and according to the federal government, if property owners begin building a home on a farm that the agency believes possesses the required moisture, Property owners are at the mercy of the agency."
That's what, the Supreme Court has ruled, happened to the Sacketts. On the other side of the road that passes next to his farm is a wetland that connects to a drainage ditch that leads to a non-navigable ravine that flows into the lake. The EPA considered that this made it a protected wetland and ordered them to remove the backfill material for construction under threat of a fine. The case became entangled in the courts, first reached the Supreme Court on questions of jurisdiction in 2012, then stalled. More than 15 years later, the couple has gotten away with it.
Conservative Justice Brett M. Kavanaugh, who joined the court's three liberal justices in concurring opinion, said the decision harms the EPA's ability to combat pollution. In her text, Elena Kagan goes even further and accuses her colleagues of trying to amend Congress and "rescue property owners from their overly ambitious pollution control program."
"It's a catastrophic decision," explains Jim Murphy, director of legal advocacy for the National Wildlife Federation, "because it removes the protection of millions of acres of land that are left federally unprotected. It will have effects on the lives of people, communities and animals." The problem, according to Murphy, is that "the vast majority of wetlands do not have a distinguishable surface connection" and, therefore, are now unprotected. "75% of the American population is strongly in favor of protecting clean waters. We hope that Congress will adopt a law in that regard," says the activist, who fears that the Supreme Court's decision means the return of some of the problems prior to the 1972 law. Kagan herself recalls in her text perhaps the most famous crisis, "when the fire ignited [in 1969] in the Cuyahoga River of Ohio, fed by oil and other industrial waste" that polluted its waters. Murphy, for his part, clarifies that Lake Erie "was practically dead" before the 1972 law.
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