Ep. 86: Sackett v. EPA Decision — What the Justices Said and What this Means for Water

CleanLaw

Harvard Law School Professor and EELP's Founding Director Jody Freeman, who is also an independent director of ConocoPhillips, speaks with Harvard Law School Professor Richard Lazarus and University of Wisconsin-Madison Professor of Law Steph Tai about the US Supreme Court’s recent decision in Sackett v. EPA. They discuss how the Court’s reliance on a dictionary definition of waters will drastically limit Clean Water Act protections: severely shrinking what qualifies as covered wetlands and streams, and as a result, enfeebling the federal government’s ability to protect the larger water bodies the act still clearly covers. With a deep dive into the history of the Clean Water Act, the Supreme Court’s prior decisions, and the science of watersheds, they put into context how the Sackett decision flies in the face of what Congress intended when it passed this landmark legislation. Quotes: “[I]f the Court uses a continuous surface water connection test, which is what they're moving towards, to traditional navigable waters required for wetlands, more than 50% of wetlands in some watersheds would no longer be protected by the Clean Water Act. With respect to streams: Ephemeral and intermittent streams would not be jurisdictional waters and thus more than 90% of stream length, in some watersheds, would no longer be protected by the Clean Water Act.” —Steph Tai [6:50] “… [W]e don't have to guess what the purpose of the Clean Water Act is, it's the very first section of the act, section 101, it says its purpose is to preserve the biological, physical, and chemical integrity of the nation's waters. That is the purpose of the statute. And unfortunately, what the court is done here, it's made it impossible to do that both to those waters that are now no longer covered themselves, which are important, and because their connection to the waters the court says are covered. So all sets of those waters will no longer be effectively protected by the statute. And when Congress did this in 1972, they did it deliberately. They deliberately decided we needed a national law, a comprehensive law. They deliberately defined the term navigable waters to mean waters of the United States as a broad term, and the accompanying legislative history said, we're doing that deliberately. We want to tap into the full scope of Congress's power under the Commerce Clause. So, they were intentionally not making this depend on traditional notions of navigability. And that's been the sort of the settled law. And now the court has turned back the clock.” —Richard Lazarus [13:45] “I felt a sense of disappointment there wasn't a dissent that really took the majority to task and chimed in about the danger of the Thomas-Gorsuch approach and view of the Commerce Clause... [L]urking here in the Thomas-Gorsuch concurrence is a very radical view of the Commerce Clause and what Congress can do and what it means for environmental law more generally.” —Jody Freeman [42:50] “There is a real tone and tenor and attitude of real disdain for the enterprise of the agencies in these cases. For the job the government has been given by Congress in these statutes, a sense of the government is the enemy. The government imposes and impinges on liberty. There's a line in the Alito opinion, Richard, that says the Clean Water Act is a ‘potent weapon’ and it has ‘crushing’ consequences. Not, ‘there's a mission.’ Congress gave the agency a mission to protect the waters of the United States.” —Jody Freeman [55:08] Transcript: http://eelp.law.harvard.edu/wp-content/uploads/CleanLaw-86-final.pdf