This past week, in Sackett v. EPA, the United States Supreme Court unanimously brought to an end the nonstop siege that the Environmental Protection Agency (EPA) imposed on Michael and Chantell Sackett during their 19-year quest to build a single-family home on a building plot some 300 yards from Priest Lake, a navigable body of water, with a number of homes between their lot and the lake itself. The EPA asserted jurisdiction over the Sacketts’ land and threatened them with fines of over $40,000 a day. In 2012, the Supreme Court refused to allow those excessive fines to block a lawsuit but left matters in limbo by returning the case to the lower courts. In the second round of litigation, all nine justices agreed that the EPA had gone one step, if not many steps, too far. But none of them sought to explain where or why the EPA was wrong.  Instead, sharp divisions emerged in the Court on the question of just how much was too far. The key provision of the Clean Water Act (CWA) reads: “(7) The term ‘navigable waters’ means the waters of the United States, including the territorial seas,” such that a wetland, however defined, bears no similarity to the large bodies of water that are “in direct contact with the open sea.” As the justices saw the case, the key question was how best to interpret the term “adjacent,” which does not appear in the statutory definition.

So, why has the Supreme Court sharply divided over the terminological dispute of whether the word adjacent means “abutting on” or “nearby”? The answer is that this term makes its appearance only once in the statute, in Section 1344(g)(1), which authorizes the states to conduct their own permitting programs. It is from this section that Justice Alito, writing for the Court’s majority, concludes that the “statutory context” “specifies that discharges may be permitted into any waters of the United States, except for traditional navigable waters ‘including wetlands adjacent thereto,’” suggesting that at least some wetlands must necessarily qualify “as waters of the United States.”

Starting from this premise, Justice Alito then observes: “We start, as we always do, with the text of the CWA,” after which he makes a correct reference to the great 1824 decision of Gibbons v. Ogden, in which Chief Justice Marshall goes to exceptional lengths to note that the scope of the Commerce Clause (“Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) must include navigation, but does not extend to those matters that are “completely internal” to the states, including those bodies of water that meet that definition. But Alito’s judicious choice of the word “start” suggests work must be done to finish this analysis, which in this context should at the very least include the relationship of this definition section to the other provisions of the CWA. But progressive critics take no prisoners, and in their view textualism breaks down because, to use the words of its most influential academic opponent, William Eskridge, “Textualism promises simplicity: Focus on the text . . . and nothing but the text.” This is a premise, he concludes, on which textualists cannot deliver. Both Justice Kavanaugh and Justice Kagan seek to beat Justice Alioto his textualist game. Justice Kavanaugh says that by narrowing the term “adjacent,” “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.” Justice Kagan insists that the CWA covers noncontiguous bodies if “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.” And she gives that provision a broad reading by recalling the “crisis proportions” in 1970 when Congress freaked out after Ohio’s Cuyahoga River had burst into flames—a situation far removed from the Sacketts’ modest efforts. Thereafter, she reiterates her passionate objection to the “major questions” doctrine from West Virginia v. EPA (2022) because it crimps the powers of Congress, rightly in my view, given the real risk of administrative overreaching.

Now step back for a moment. There is something odd about having the scope of the EPA’s powers determined by a single term that does not appear in the relevant statute’s definition section, but in Section 1344(g)(1), which deals only with state permitting procedures. The explanation for this placement is that that the CWA was passed with the understanding that not all navigable bodies of water were waters of the United States and thus subject to federal power. Justice Thomas and Gorsuch in their concurrence stress the limited reach of the commerce power stemming from Gibbons. “Critically,” they conclude, the CWA only applies to actions involving waters of the United States “that are, or were, or could be used as highways of interstate or foreign commerce.” Hence, those waters that are not navigable waters of the United States are surely subject to state power. Thus it makes perfectly good sense to place the term “adjacent” in this federalism section that recognizes that states have powers over navigation beyond those held by the United States.

So there is no justification whatsoever to read, as did all nine justices, the term “adjacent” back into the definitional provisions, and hence no reason for them to squabble over whether the word “adjacent” means abutting or nearby (note that the dictionary definition includes both meanings, but also note that the dictionary definition of “nearby” does not include “adjacent”). But if the outcome of this semantic debate matters, the textual edge would go to Alito, especially since the dissenting judges do not give a clear account of how much ground their broader definition of “adjacent” covers.

It is therefore no surprise that a chorus of criticism, starting with President Biden and his EPA, takes the decision to be a giant step backward by increasing the risks of pollution everywhere. Thus, the president talks about swimmable water and lead pipes but offers not a single word of defense for the EPA’s crusade against the Sacketts. And pundits at PBS display a gorgeous picture of ducks swimming among the bull rushes but do not post a picture of the ramshackle Sackett site. Here is the contrast.

Nor at any point do the critics of Sackett note that their objections are wholly misplaced, given that the CWA enacts only a permitting system for dredge and fill permits. And nobody dredges and fills wetlands as the government defines them: lands that are soggy and wet—a wildly broad definition that treats every pothole and puddle left by backhoes as wetlands and hence navigable waters. So is the Sackett site a wetland? At the opposite end of the spectrum the wetlands commonly pictured are indeed navigable waters that could be used for canoes or flat-bottomed scows.

Put within a large remedial system, the upfront permit system for dredge and fill operations makes good sense for any activity done within navigable waters, as shifting earth and mud around could have immediate and profound effects on navigation, fishing, recreation, and drinking within those waters. Nonetheless, as a matter of sound environmental principles, that in terrorem ex ante review done in Sackett is wholly misplaced for activities far removed from navigable waters, where the possibility of any actual damage to any waterway is remote at best. In these situations, it is better to use, at either the state or federal level, the traditional system that allows for government (or in some instances, private parties) to enjoin by litigation any activities that take place outside of the waters of the United States when these activities threaten imminent peril to protected waterways.

Yet at no point do any of the justices in Sackett address the role that these lawsuits to control nuisances to public lands and water play in forming a critical link in the system of environmental protections. Once these limitations are in place, they rid private parties of obligations to submit to an exhausting and costly permitting process long before there is any sign of potential environmental harm. They also protect private parties against government actions that could use the Clean Water Act as a de facto zoning system, thereby seriously upending the authority of local officials. Once the right limiting rules are put in place, the EPA could take its budget and use it to maximum effect by looking solely at those situations that necessarily impose serious harms on navigable waterways and the Americans who use them. The overall effect is focused protection that yields a far more efficient system of environmental laws than the current regime, where even Alito’s majority opinion does not sufficiently protect landowners whose building activities have no apparent effect on the navigable waters of the United States. And the states should adopt just these same procedures for waters within their exclusive jurisdiction.

The reason why the political and academic groups denounce Sackett is because it loosens their chokehold on the economy. But virtually every action of the Biden administration starts with an abuse of executive discretion that threatens to wreck systems of environmental regulation, climate control, securities regulation, and merger policy by moving too quickly with schemes of massive overdeterrence. In this regard it is a straw in the wind that Sackett does not even cite  Chevron v. NRDC (1984). That judicious silence should be understood as yet another brick in the wall against administrative abuse that one hopes protects this nation from excessive government discretion and overdeterrence. Its time may now have come.

© 2023 by the Board of Trustees of Leland Stanford Junior University.