Deep Dive Episode 236 – Sackett v. EPA: How Will the U.S. Supreme Court Define “Waters of the United States?”
One of the most controversial and long-standing environmental issues deals with what waters are regulated under the Clean Water Act. For decades, the EPA and Army Corps of Engineers have struggled to define “waters of the United States” (WOTUS) and the Supreme Court has not been able to provide clarity in its previous WOTUS decisions. Now though, the U.S. Supreme Court’s first case of the new term is Sackett v. EPA, which provides the Court another chance to provide some clarity. In this podcast discussion, the lead counsel for the Sacketts, Damien Schiff, and Georgetown University’s William Buzbee, delve into the legal issues of the case and its implications.
Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.
[Music and Narration]
Introduction: Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.
On September 27, 2022, The Federalist Society’s Regulatory Transparency Project hosted a virtual event titled, “Sackett v. EPA: How Will the U.S. Supreme Court Define ‘Waters of the United States?'” The following is the audio from that event.
Sarah Bengtsson: Hello and welcome to this Regulatory Transparency Project virtual event titled, “Sackett v. EPA: How Will the U.S. Supreme Court Define ‘Waters of the United States?'” My name is Sarah Bengtsson, and I am the Associate Director of the Regulatory Transparency Project here at The Federalist Society. Today, September 27, 2022, we are pleased to have with us an excellent panel moderated by Daren Bakst.
Daren Bakst is a Senior Research Fellow in Environmental Policy and Regulation at the Heritage Foundation Center for Energy, Climate, and Environment. Daren will introduce our panelists, but you can find out more about all of our speakers today at REGproject.org. That is REGproject.org. After discussion between panelists, we’ll go to an audience Q&A so please enter any questions you have into the Q&A function at the bottom of your Zoom window.
Finally, a note that as always, all expressions of opinion on today’s program are those of the speakers joining us. Thank you all for joining. And with that, I will hand it over to you, Daren.
Daren Bakst: Thank you, Sarah. Good afternoon, everybody. And as Sarah said, my name is Daren Bakst, and I’m a Senior Research Fellow at the Heritage Foundation. I want to thank you for joining us today as we discuss what I would describe as one of the most important environmental cases in recent memory, Sackett v. EPA.
This is a case that can finally provide some clarification as to what waters are regulated under the Clean Water Act. For the Court to provide clarity, it will require examining the meaning of the term navigable waters and more specifically the language “waters of the United States,” or WOTUS, that makes up the definition of navigable waters.
For decades, the EPA Army Corps of Engineers struggled to define WOTUS, and the Supreme Court hasn’t been able to provide clarity in its previous WOTUS decisions. Now in its first case this term, the Court could provide clarity. So we’re pleased to be joined by Damien Schiff, Senior Attorney at the Pacific Legal Foundation on the accounts of the Sacketts, and William Buzbee, Professor of Law at Georgetown Law.
For today’s program, I’m going to ask Damien to first explain the status of the case and how the case made it to the Court. Then we’re going to get to remarks from both Damien and Bill, each discussing the legal issues in the case and how they feel the Court should resolve the issues. After remarks, we’ll have discussion and then take your questions.
So let’s get right to it. So first, Damien and Bill, thank you for joining us. And Damien, let’s just start with you. Can you just tell us the status of the case? When is the case going to be heard? And when would you expect there to be an opinion?
Damien Schiff: Thanks, Daren, and thank you for The Federalist Society hosting today’s program.
The case will be argued on Monday, October 3, at 10 am. And presumably, we’ll have a decision sometime before the end of the term, I would think, probably sometime maybe early next year.
Daren Bakst: So how did the case even get this far and reach the Supreme Court?
Damien Schiff: It has been a very long process of litigation that has already included one Supreme Court decision halfway through. But the case began, in a sense, began in 2007. That’s when Mike and Chantell Sackett, who are the petitioners and the plaintiffs in the case, they started to build on a residential lot that they had purchased near Priest Lake, Idaho, started to build their family home. Within a day or so of their having started the initial construction work, officials from EPA and the Army Corps came onto the property and verbally informed the Sacketts’ construction crew that they should probably stop working because in those officials’ view, the lot contained wetlands that were regulated as navigable waters under the Clean Water Act and that because the Sacketts had no permit to do that, their homebuilding would be illegal.
And about six months after that verbal discussion, EPA followed up with a formal written compliance order which basically made the formal conclusion that the Sacketts’ initial homebuilding had violated the law and that they needed to immediately restore the site to its pre-disturbance condition or else suffer pretty significant civil penalties.
A few months after that, the Sacketts came to the Pacific Legal Foundation. We filed a lawsuit on their behalf in federal court in Idaho basically challenging EPA’s authority to regulate the property, that there were no regulable features, there were no navigable waters on the property. The District Court of the 9th Circuit initially threw the case out on a procedural ground saying that this compliance order the EPA issued was not judicially reviewable. It was on that point that the Supreme Court first took up the case in 2012 and ruled unanimously that the compliance order is judicially reviewable and that the case could go forward.
So it was sent back down to federal court in Idaho. The case languished for a while because of docket and other timing constraints. But ultimately, in 2019, the district court affirmed EPA’s jurisdiction over the Sacketts’ property. Then the 9th Circuit then affirmed that decision in a decision in August of last year. Sacketts then petitioned the Supreme Court to take up their case again which the Court agreed to do in January of this year. And now the question presented to the Court the second time is the merits of the case. That is, does EPA have authority under the Clean Water Act to regulate the Sacketts’ property?
Daren Bakst: So thanks Damien. So let’s hear both of your initial remarks regarding the legal issues in the case and how you think the Court should resolve the issues. Damien, let’s just go right back to you for the first presentation.
Damien Schiff: The way, Daren, that we had presented the case is one that largely draws upon what the Supreme Court has already said about the scope of the Clean Water Act. And I should mention that the Clean Water Act is written to give EPA and the Army Corps of Engineers the power to regulate discharges of pollutants, which is very broadly defined, to “navigable waters.” And that term is in turn defined in the statute as the waters of the United States.
And the Supreme Court has addressed that term in three prior decisions, most recently in a case from 2006 called Rapanos, which was a split decision. But the plurality in that decision was authored by Justice Scalia, and his explication of what it means to be a water of the United States is by and large what we are now asking the Supreme Court to accept as the jurisdictional rule.
And as Justice Scalia would have argued it, he looks first at the text of the definition, that it uses the term “the waters” and under an ordinary parlance dictionary-type definition of that term, he concludes that it refers to things that you would refer to in an ordinary conversation as streams, creeks, lakes, rivers, and the like but that he says that one wouldn’t, in ordinary parlance, refer to a “wetland” as a water. And so he then concludes that therefore, the only way that wetlands can ever be regulated as waters is if there’s a boundary drawing problem between them, meaning that in delineating in any given case the full extent of a particular pond or lake or creek or what have you, that inevitably there are going to be some challenges in deciding precisely where that water ends and dry ground begins and that ambiguity in determining precisely where to draw that boundary line is one that Justice Scalia, following upon an earlier Supreme Court decision, said is by and large the task of EPA and the Court to do but within the limits that if there is no such line drawing problem, meaning that if the wetland or marsh or bog or what have you that’s at issue is clearly differentiated from any nearby plausible water, that according to Justice Scalia, that wetland in and of itself would not qualify as a “water.”
So that really is the heart of the test that we’ve offered, again, largely based upon Justice Scalia’s Rapanos opinion, but we’ve also gone a little bit beyond his opinion to provide a test as to when a water is “of the United States.” And that’s an aspect of the statutory definition that really hasn’t received any treatment prior to this case in the Supreme Court case law. An argument there is by and large that a water of the United States is essentially a type of channel of interstate commerce but an aquatic channel of interstate commerce which ties the statute to a more modest understanding of Congress’s power to regulate environmental issues by virtue of its enumerated power to regulate interstate commerce.
That’s a little more of a nuanced argument, but I think for people who want to get to the gist of the case quickly, I think it’s more important to focus on this first step which is when can a wetland be considered a water because that has received the most attention both in the briefing as well as the most attention in prior Supreme Court cases. And I think that’s where most of the controversy has been, the extent to which features like wetlands and other things in ordinary conversation wouldn’t really be considered traditional waters to the extent to which they can be regulated.
So in a nutshell, wetlands in our view can be regulated if but only if they are inseparably connected to an adjoining water such that you can’t really tell the boundary between them, where the wetland ends and the water begins is a challenge and therefore, in those circumstances, the agency can regulate. In contrast, in cases like the Sacketts’ property, which is bounded on the north and south sides by roads and the east and west sides by other developed properties and which has no water connection to any other plausible water. In circumstances like that, we would argue that any wetlands on that site could not themselves be categorized as waters.
Daren Bakst: Thanks, Damien. Bill, let’s turn to you.
William W. Buzbee: Okay, well, so first, thanks for inviting me to participate here. Also, I should add that I’m a Professor at Georgetown. I also, in this case, was the lead counsel on a brief for 167 members of Congress opposed to the views that were just described on behalf of the Sacketts. And my co-authors on that brief were Sarah Colangelo of Georgetown’s Environmental Law & Justice Clinic and Jack Whiteley, a fellow at that clinic. So I’m going to describe my own views today but certainly as informed by the research we did into the statute and the question presented.
So first, let me just start off with a slight disagreement. So one is just in the opening description, there was this claim that there had been longstanding unsettled regulatory views about when waters are protected. Actually, the views for, depending on how you count, were somewhere between 30 and 40 years, whether Republican or Democratic administrations were in power, the approach to protecting waters and what counted as a water was largely stable including right through the George W. Bush administration, which argued in favor of retaining the Clean Water Act’s protections in the Rapanos case. And then similarly, the Obama administration continued that as the Democratic administration. The only administration that, as a regulatory matter, took a really different view was the Trump administration.
And then one other, just as a matter of fact, for those who are new to this case, in every Supreme Court case, there’s a joint appendix that sets out what are the actual facts in the case. And to the extent there’s a question about the status of the Sacketts’ property, going back to the previous owners and the Sacketts on an ongoing basis since 1996, people looked at this property and said these are wetlands and hence subject to protection. And so that’s just actually in the appendix and that’s not controverted. That’s just the facts of the case as projected to the Court.
So now, going to the heart of the question, I think, how should the Court rule? How should it approach this? What’s the key language? I find the arguments made on behalf of the Sacketts to be bold. They’re interesting. They might succeed. The current Supreme Court certainly is aggressive in an anti-environmental, anti-regulatory way. And they may find a way to get to where the Sacketts want to go.
That said, the brief on behalf of the Sacketts and some aligned amicus briefs are really quite notable in what they don’t do, okay? So you would not know it but the Supreme Court — sorry, the Clean Water Act in Section 404 actually spells out the criteria, that’s the dredge and fill provision, it spells out the criteria that regulators and courts and all of us need to apply in thinking about when are waters protected. And in that provision, it says first, the goal is water quality. It is integrity, physical, biological, and physical integrity. And then there’s a cross-reference to a provision about how ocean discharges are regulated, and it is very clear. It spells out “water quality-based fisheries, ecosystem, municipal water supplies,” the entire statute is about protecting the environment for its environmental attribute. This is not a statute that is about protecting the channels of commerce for shipping. This is fundamentally an anti-pollution, water-quality based statute. And, again, this is not me talking. This is exactly what is spelled out in the express language of the statute.
So what makes this really interesting is many members of the current Conservative majority on the Supreme Court view themselves or have claimed to be textualists. If you take the text seriously and you look at the words, the contexts, the surrounding words, important definitions, criteria for decisions, and the operational attribute of the statute, how it works together, it absolutely requires the Court to reject the Sacketts’ argument.
The Sacketts’ argument is built on taking the surface of the statute, just the waters of the United States, and then they don’t look at what 404 in the dredge and fill language says the agencies and courts need to apply as the criteria. And so I think the whole game will be whether the Supreme Court takes statute seriously and says that legislative primacy is the constitutional rule of the land. If they do and they read the statute, the Sacketts will lose. If they ignore the statute and go to tests that are supplied and that are nowhere in the statute, well, then the Sacketts might win.
Daren Bakst: That was great, Bill. So there was a lot there so I want to give each of you a chance to respond to each other. So, Damien, let me give you a chance to respond and then, Bill, you can respond to Damien.
Damien Schiff: Well, I would first begin by saying that the test that the Sacketts have offered, I think, frankly, is one that’s faithful to the statutory text. And if anything, it’s EPA in its defense of its position that has tried to fudge the text a little bit in the name of pursuing a larger over-arching water quality purpose. So I would say it’s a little ironic for Professor Buzbee to contend that we’re actually not the textualists, but I think part of the argument may be based on a misapprehension in that certainly, Professor Buzbee’s right that Section 404 does provide for EPA to issue guidelines on dredge and fill and for the court to participate in that and to minimize the environmental impacts and such things. But as we read the statute, those are all criteria that are triggered only once there has been the logically prior determination that one is dealing with a regulated area.
And so in that sense, the relevant statutory text for this case now is not, we would say, in Section 404 but rather in Section 502 which is the general definition section of the Clean Water Act, which includes, among other things, the definition of navigable waters.
And with respect to purpose, I would certainly agree with Professor Buzbee that water quality is the driving purpose or objective of the Clean Water Act, but it’s not the only purpose. In fact, somewhat maybe unusually for environmental law, you have in the very beginning of the statute right after the enunciation of this general water quality purpose, you also have Congress listing a number of policies. One of those being that it is important to preserve the States’ traditional preeminence in the regulation of land and water resources. And I think it’s that second purpose that the Sacketts’ test fully vindicates but which EPA’s position I don’t think does. And if one needs any evidence for that proposition, I think the Sacketts’ case represents the best possible evidence because what EPA has done by its enforcement history against the Sacketts is to prevent the construction of a single-family home in a largely built out residential subdivision.
Now that, traditionally, is not something that one would think is within the cognizance of the federal government. That’s traditionally something that is left to state and local regulators to regulate. And so the fact that EPA’s version of the statute would reach that sort of activity but the Sacketts’ interpretation would not, I think, is another indication that their understanding to the statute adheres more closely to all of Congress’s purposes than the competing, which we can get to later, we’ve been speaking a little more generally, but EPA’s competing standard of the significant nexus test.
William W. Buzbee: So, I guess, first, one of the things that Damien is doing which is effective advocacy, so I applaud your law school education, but which is a shift in claiming that really what our criteria for action under the statute are mere purposes. The Supreme Court has said purposes don’t override the, basically, the rules of the road, the criteria for courts and agencies to apply. The Clean Water Act in Section 404 and 403(c) and another provision, 404(f), spells out the exact criteria that do have to guide all decision making.
These are not purposes. These are the criteria, and the Sacketts chose to seek certification. And the Supreme Court cert was limited to the question of protection. What test should apply to the protections for wetlands? That is Section 404. Section 404 is the wetland provision and what it says is you protect against degradation of water quality. You protect human health, welfare, plankton, fish, shellfish, wildlife, ecosystem diversity, stability, aesthetic, recreation, municipal water supplies. And then it says there shall be no filling if there’s a land-based alternative.
And so these are the express rules of the statute. These are operative criteria under 404. And importantly, the Supreme Court in West Virginia said the words of a statute must be read in their context and with a view to their place and the overall statutory scheme. Other recent cases: you can’t cherry pick favored sources; you have to give statutes a fair reading. And the bottom line is, the statute says no, and these are not purpose provisions.
And then another important which I hope we’ll get to and that Damien raised and, Daren, if it’s okay, I’ll just transition because it’s partly responsive to what he said there. So the Sacketts’ property is — its map is a wetland. It’s adjacent to this large lake. There is a row of houses and an elevated road that creates barriers that otherwise would create a smooth transition from this mapped wetland into a nearby tributary and a lake.
And a lot of their argument hinges on that there simply cannot be jurisdiction. So they argue when there is such a human severance of a property from waters. And importantly, the statute itself in provision Section 404(f) says no to that. Human constructions that brings land into a new use cannot sever jurisdiction. And that too has been 50 years of consistent regulatory policy. You cannot change the land and make something no longer a wetland that is. And so there, too, the court should look at that and that, frankly, is a legal irrelevance that a human construction does not make something no longer a water.
Daren Bakst: Great. So let me get to some questions and if you want to add some responses on the way, feel free to do that. So, Damien, you brought up Justice Kennedy’s significant nexus test. I’d be interested, first of all, if you could just briefly explain it and then also, I’d like to get your take on whether you think the approach is workable for the agencies’ [inaudible 23:25] in the courts, the Kennedy’s significant nexus test.
Damien Schiff: The significant nexus test came from Justice Kennedy’s concurring opinion in Rapanos, the decision I mentioned earlier from 2006, the last time the Supreme Court addressed this question of the scope of the Clean Water Act. And, excuse me, in that opinion, he disagrees with Justice Scalia and believes that his wetlands jurisdiction test was not sufficiently respectful of Congress’s water quality aims, and so he proposed a competing test. And the term significant nexus is a term that doesn’t appear in the statute. It appears in the Supreme Court’s immediately prior decision from Rapanos addressing again the scope of the act called Solid Waste Agency of Northern Cook County v. Army Corps of Engineers.
Anyway, we can talk a little bit more about the providence but what the test itself is, according to Justice Kennedy, is that a wetland may be regulated under the Clean Water Act if either it by itself or in combination with other similarly situated lands in the region significantly effects the physical, chemical, and biological integrity of a downstream water that’s, I think as he would phrase it, that is navigable in a more traditional sense.
And so in practice, what this allows is for the agencies to regulate a lot of areas that on themselves might have no or only a de minimis impact on traditional navigable waters but when aggregated with other areas in a watershed are then held to have such a relationship. And the Sacketts’ case, again, is a good example of that whereby EPA’s basis of jurisdiction is not that the Sacketts’ property itself is significantly related to, say, Priest Lake but rather that it is significantly related when you add the Sacketts’ property to the 35 acres or so of wetlands that are on the other side of the street on the other side of the property. And that’s how you get the significant effect, and that’s how EPA affirmed its jurisdiction.
Now, the problems with a significant nexus test, I think, are many but just in terms of its administrability, I think the regulatory history over the last 16 years shows that it’s not a good test in that immediately after Rapanos, EPA and the Court proposed a guidance document to try to put some flesh on the bone of the test. I think by universal acknowledgement that the guidance documents really guided nobody, which led the Obama administration EPA in 2015 to issue what it called a Clean Water Rule which attempted to operationalize the significant nexus test. But that rule was quickly enjoined by the Sixth Circuit and ultimately held illegal by at least two other district courts and never went into effect nationwide.
And since that time, we’ve had also regulatory proposals from the Trump administration, which Professor Buzbee referenced, and now most recently, we have one from the Biden administration EPA which is currently pending which also tries to bring things back to the way they were after Rapanos, including adopting the significant nexus test.
But my laundry point is that the regulatory challenges through guidance documents or notice and comment rulemaking that the agencies have encountered in trying to make the significant nexus test work evidenced the challenge in using that test. And that’s one reason why we believe that the Sacketts’ test, you can call this line drawing standard that a wetland is not regulable if it’s clearly distinguishable from any plausible water. We think that one reason why that’s so attractive is that it is so much easier to employ than the significant nexus test. It requires an ordinary visual observation. It doesn’t require consultants or any technical personnel which a significant nexus analysis certainly does require. It’s there for a lot cheaper to employ, and it’s a lot simpler just because it has fewer variables. It’s just where does the wetland end and the water begin?
In contrast, the significant nexus test has the variables of what’s significant, what are the relevant physical, chemical, or biological criteria, what does similarly situated mean, what does in the region mean? Each of those parts of the test are fairly vague. In fact, Justice Scalia in Rapanos specifically criticized the test as being so opaque that it amounts, in his words, to a wink and a nod at the agencies to continue doing whatever they have been doing, very broadly construing the Clean Water Act prior to Rapanos.
So for all those reasons, we think certainly on policy and administrability grounds that the Scalia Rapanos plurality test is superior to the competing significant nexus test.
Daren Bakst: Bill, go ahead.
William W. Buzbee: So first, much of what Damien said I think is describing Rapanos and the significant nexus test, but there are a couple ways in which there’s a little confusion or maybe mistake there. So first, the Scalia opinion was a plurality opinion. It spoke for four justices. Justice Kennedy’s opinion where he laid out the significant nexus test, there were four dissenters who said expressly we would also protect the waters that Justice Kennedy and his test would protect. So there was a five justice majority accepting the significant nexus and there was never a majority for the Scalia test.
Again, this is a Supreme Court so they can create a new majority. They are not literally bound by where majorities stood in the past. And so then the question is okay, is the significant nexus test a kind of atextual test? Actually, the significant nexus test, if you just read through it and then you put next to it the language of 404 and the cross-reference Section 403 and if you put also regulations in place for the last 50 years, they largely track each other. In other words, what the significant nexus test does is it is a judicial gloss on the statutory criteria that are laid out in the law that Congress actually enacted.
And, yes, it focuses on integrity of waters. It has an anti-pollution skew. It’s about protecting waters and the pollution that would affect their water quality adversely. And that’s exactly what the statute says, and that’s exactly what Section 404 and Section 403 say. And so I think the bottom line is significant nexus test should never have been read as supplanting what Congress enacted. Whatever lawyers have been doing since Rapanos is actually in a fairly settled sort of way, they looked at the statute, they looked at the regulations, they looked at the language of the cases, and they said okay, the waters that Scalia would protect, there’s a majority that would protect his waters. There’s a majority that would protect Kennedy’s significant nexus waters, and EPA, the Army Corps, Department of Justice and all courts found a workable way to apply this since then.
But it is important to see the significant nexus test is a judicial gloss on the statutory criteria. In contrast, in a, I think, one of the quirks of Justice Scalia’s jurisprudence, he never goes to the actual criteria of the statute. He just stays with the term “waters of the United States,” jumps to dictionaries. He doesn’t look at the statute would work. He doesn’t address the water quality elements. And so what he does actually is an atextual decision that ignores the rest of the statute and what it says. And that’s probably why in the end it was not a majority opinion.
Daren Bakst: Just want to remind the audience, please submit your questions in the Q&A. I’m going to try to integrate the questions as I go along with our discussion instead of necessarily having a separate Q&A time. So I’ll integrate the questions.
So, Bill, I want to come back to you, actually. Let me ask a question. Doesn’t there need to be some type of meaningful distinction between what waters are protected under the Water Act and what are left for states, local governments, and property owners? And if so, if you think there needs to be a meaningful distinction, what was the line when the WOTUS definition just gets too broad?
William W. Buzbee: So I would say two answers. One is everyone has an interest in regulatory clarity, okay? But there also are settings where statutes and in particular statutes criteria called for science intensive decisions. And so if someone proposes to build in a parcel land and there is a dispute, such as the Sacketts, there is a set forth set of criteria and procedures to go through to duke it out about whether something is on the water side of the spectrum or is actually a land and not subject to protection. And so that’s the first and most important answer is science would answer that question in application.
The second is the Clean Water Act has five different savings provisions within a strongly federalizing statute that sets a regulatory floor of protections and guarantees everyone across the country, including the arid states like the West, that their waters will be protected from degradation and especially from filling, which is what Section 404 prohibits. And I say that to partly answer your question, an interesting twist in this case is the test proposed by the Sacketts would really write off the West and the Southwest in the arid areas from protection because in arid areas, you seldom have continuous flowing permanent connections or waters that are channels of interstate commerce in the sense they describe.
And yet, the Clean Water Act, there’s absolutely nothing in any element of the statute or its history that would say water scarce areas should not be protected. And so the bottom line is the statute answers the question. It calls for sometimes difficult science judgments, but it does apply uniformly across all the country. So another way to do it is any test that the Sacketts or anyone proposes, you have to explain how that test would do real work, especially in the arid West where waters are most scarce and most valuable.
Daren Bakst: Thanks. So, Damien, let me follow up a question with you. You’re proposing a definition of WOTUS that’s certainly narrower than compared to what’s been released in the regulations in the past. Do you think that such a narrow approach that you’re proposing would leave out protection for many waters, including environmentally sensitive waters? And if so, wouldn’t that be a problem?
Damien Schiff: I don’t believe that that would be the outcome if the Court were to adopt the Sacketts’ proposed test, in part because the federal government is not the only regulator in town, so to speak. And in fact, in support of the Sacketts, West Virginia filed an amicus brief on behalf of, I think, 26 other states, most of which are in the Midwest and in the West in those arid regions. And they’re supporting the Sacketts because they recognize that they have their own ability as states to regulate their water resources in a way that is protective to the satisfaction of their citizens but also that may employ different regulatory approaches from what the federal government would have under the Clean Water Act.
So I think one should always bear in mind that simply because an area might not be federally regulated doesn’t mean that it’s going to be without any chance of any possible protection. But I would also add too that the scope of the regulatory reach, so to speak, of the Clean Water Act is not just simply figuring out what are the actual “regulated waters of the United States,” because as the Supreme Court ruled two terms ago in County of Maui v. Hawaii Wildlife Fund, the statute also reaches so-called indirect discharges of pollutants. These are pollutants that might not have started off in a regulated water but either because of natural or manmade causes eventually end up in a regulated water, either, say, through a ground water connection or through, say, a surface point source like a ditch or a pipe or what have you. And in many of those instances, the Court indicated in The County of Maui that those discharges would still be regulated.
And so I think for that reason as well as the fact that the federalism backstop that I don’t believe that a reduction in the scope of the Clean Water Act as it has been interpreted is going to worsen environmental quality or water quality generally.
I would like to add too that when construing the Act, not only is it important to adhere to the text which I think the Sacketts’ test does, but there are also these cannons of construction that the Court has recently, as in West Virginia, in the West Virginia v. EPA case from last term emphasize are relevant, among them the idea that we expect a clear statement from Congress when it attempts to radically rework a traditional federal state balance of power.
And, again, I would go back to my comment earlier that things like home construction is the quintessential land use activity that has been regulated by the states and the local governments, not by the federal government. And so when EPA employs a test that can routinely capture such local activity, that, I think, is at least a warning sign that the test may not be a faithful expositor of congressional intent.
I would just also add too that there is this additional cannon of constitutional avoidance that we know from prior Supreme Court decisions that the Clean Water Act has been construed narrowly, precisely to avoid the difficult constitutional questions that would arise by ascribing to the federal government the power to regulate things like land use that traditionally have been state concerns. So I think those cannons of construction which are not new, which have been employed by the Supreme Court in Clean Water Act cases before, I think those also counsel a more narrow approach to the statute than the EPA has heretofore employed.
Daren Bakst: So I’ve got a question from the participating’s from the audience that kind of participates some of the questions that I was going to have so I’m going to ask it, just a little. So, Bill, this will be to you. The definition of WOTUS is inherently vague. GAO has it cited in Rapanos as clarifying that the Corps has been inconsistent in its application of the definition of WOTUS so it’s so unpredictable. It’s really difficult. So taking that into account, all that, that’s important for line drawing, but I would ask, would you assert that an ephemeral stream is a WOTUS, anywhere in the country, including the western U.S.?
William W. Buzbee: So, well, first, the case before the Supreme Court was about wetlands, okay. And so there is a big question whether the Sacketts persuade the Court to go differently than what the Court said it was going to hear. But if we turn to the issue of ephemeral streams and the rest, in the West, so-called ephemeral streams can be torrential rivers that flow but not all the time. And so there, again, the question about whether they are subject to protections, you look at the statute and the criteria it sets forth. And when you look at the criteria, especially recreational uses, municipal water supplies, by definition, that’s always going to be downstream. No one’s ever going to be dealing with Section 404 where they’re directly trying to put fill into municipal water supply. That provision is talking about protecting areas of types of waters for downstream harms that will happen.
And so, yes, ephemeral streams can and often will be protected. The fact that they are ephemeral cannot eliminate them automatically. What I don’t know enough and I’m not enough of a hydrological scientist, I’m not one at all, but if a scientist looked at it, they would look at the actual function, the location, where it goes, the uses that are made to determine if something is just the equivalent of someone’s yard or if it is indeed an ephemeral stream that is significant. But that’s very much, again, a scientific judgment.
And one twist, since everyone who’s listening to this is a legal geek by definition, one issue here, of course, is the Sacketts decided not to make a challenge under arbitrary and capricious. They were not challenging the application to them. They have sought a legal declaration of what the test is. So if they wanted to challenge what regulators said about that property, that’s a very different case and they would’ve had to make the record. As joint appendixes, we have what we have which is a mapped wetland with a row of houses and a road and a tributary and next to it a very important water that depends on those wetlands.
So, again, it’s a functional water quality protective statute with an anti-pollution, anti-fill skew. That’s just what it says.
Daren Bakst: So one thing that we haven’t talked about much yet is the Commerce Clause. And, Damien, I’m going to start with you, actually, on this one. Can you explain how important or not important the Commerce Clause is to this case?
Damien Schiff: I think it is important in an indirect sort of way because in the Swank decision from 2001 where the Supreme Court was asked whether the Army Corps could regulate isolated ponds, the Court employed this cannon of constitutional avoidance to construe the Clean Water Act as an exercise of Congress’s power over the aquatic interstate channels of commerce and not as an exercise of its full commerce clause authority as set forth in decisions like Wickard v. Filburn.
So given that precedent, I think now, the commerce clause is not so much directly relevant but rather, as I mentioned earlier, indirectly relevant to the extent that if a test to construe the scope of the act is one that seems to result in a lot of outcomes that could really only be justified based upon a full exercise of Congress’s commerce powers as opposed to a more limited exercise of its channels of commerce power, then I think that that’s another warning signal that the test is not accurately interpreting congressional intent.
So in that sense, it’s not so much strictly speaking a constitutional issue as it is a statutory interpretation issue that we know that if we start with the premise that Congress intended not to exercise its full commerce power authority, then it necessarily follows that any test to construe the scope of the statute it enacted has to be a test that will not capture things that could only be captured through a full exercise of that commerce power authority.
Daren Bakst: Okay.
William W. Buzbee: So, there, I think I generally agree. This case is not a frontal commerce clause-based case. That’s not the heart of it. But there is the effort to use by Sacketts and some of the allies what’s called a clear statement move where professed constitutional concerns would skew the read. So it ends up being a substantive cannon.
And so a couple things. One is Damien and the Sacketts do an effective job of keep on hammering this idea it has to be about channels of commerce, but in fact, the commerce test says you can protect, under the Commerce Clause, channels of commerce, instrumentalities or activities that have a substantial effect. And furthermore — so that’s been said repeatedly. That’s the test. Case Gonzalez v. Reich, like the longstanding Wickard v. Filburn, says you don’t excise individual applications because of their smallness. You look at their overall incidents and the regulatory work of a statute or regulatory scheme. And so can the Clean Water Act legitimately reach construction and filling activities? The answer is absolutely. There’s just no doubt that that can under — if homegrown corn or homegrown wheat can be reached, this certainly can.
And so there is no constitutional concern. I think the clever move that the Sacketts have made is to try to use the gloss of the channels of interstate commerce as the test and so that’s what the statute was doing but the statute doesn’t say that anywhere, okay? That is completely absent from the statute. And so what they’re doing is giving a constitutional gloss by bringing in some constitutional language but that’s an additive. That’s not in the statute, that’s added material. And so the statute is again about commerce and all the ways it can cause harms to waters and their functions. It sets forth a protective criteria and especially on the federalism front, the statute makes all these very careful choices about what the federal government does, what the states can do, the states’ appropriations powers, that is water appropriations, expressly protected, okay? Very important.
And so Justice Scalia said in quite a few decisions in the preemption arena, is where Congress makes preemption and federalism choices, the Court should not further monkey with the choices that Congress made. And I think that is — it should be the answer here.
Daren Bakst: So I want to follow up with a question to you that I think you addressed this issue a little bit. And that is does this case require defining WOTUS generally or can we limit it to trying to figure out what wetlands are covered?
William W. Buzbee: Okay, thanks, Daren. It’s a tricky question. So the Court certifies questions and the norm is that’s the question and that’s it. And even what goes into the appendix and all the briefing targets what the Court says is the question presented. So the Court said this case is about the test for wetlands, okay? Wetlands are a subset. And, again, wetlands are expressly laid out. In the 1977 amendments, they are mentioned, they are protected. And so the question is to what extent as presented by the Sacketts.
So tell me the last part of your question again. There was a twist you had at the very end that was different than I expected.
Daren Bakst: I wasn’t going for a twist so — no, I mean, it was just — can the case avoid and just be about wetlands or do you have to define all WOTUS generally?
William W. Buzbee: Yeah. So here’s what makes that tricky. So the questions about wetlands, the waters of the U.S. language is the linchpin of the statute, okay? And so any language by the Court or courts or agencies about waters of the U.S. can’t have influence over other parts of the statute where that same language applies, okay? So that would include industrial charges under the NPDES 402 permitting, the oil spill related provisions in the statute. And so that’s why it’s so important. If the Court sticks with wetlands, then you look at 404 and Section 403 and it lays out the criteria. If they go broad and suddenly start talking about waters of all types, well, they still have to make sure it melds with that language of 404 and 403. But then you’d bring in all the other parts of the statute. So it’s kind of a tricky question as to partly with Supreme Court practice but also where and how this language works in the Clean Water Act.
Daren Bakst: Thanks, Bill. Damien, what do you think?
Damien Schiff: Well, I would supplement with just a little bit of the procedural history of this particular case in that when the Sacketts petitioned for a review the second time, the question presented was specifically geared towards Rapanos itself and asked whether Justice Scalia’s standard from Rapanos should be adopted as a clear majority holding.
And in granting cert, the Supreme Court rewrote the question presented to eliminate any reference to Rapanos as such and instead to include a quotation from the statutory text, as Professor Buzbee noted, the waters of the United States. That wasn’t in the Sacketts’ original question presented. That was added by the Court.
The reason why I took that to be significant is because Justice Scalia’s opinion is essentially 99 percent focused on elucidating in, I think, a textualist manner what the meaning of “waters” is. And he, at one point in the opinion, expressly disclaims the need to figure out how navigable or of the United States might further qualify this potentially regulable set of waters.
So because we asked the Court to decide whether the Scalia test should be adopted and it responded by giving us a full statutory text, part of which that Scalia opinion did not even really address, I think it’s fair to say that that was an invitation to provide an exposition of the entire relevant statutory phrase. Now, that being said, I think it’s certainly possible that the Court could say that we don’t need to address the whole thing, that we can resolve the case simply by articulating a standard for waters.
But I do think it’s very hard just simply to say when is a wetland jurisdictional unless the Court can at least articulate some other standard for what is a water generally because at least as the Scalia test is authored, it proceeds upon the premise that wetlands on their own are not classifiable as waters. They can only be classifiable if they effectively blend into “waters.” And from that analytical perspective, I think it’s really almost logically impossible to say yay or nay to that unless you also have in your mind well, what are these water into which a wetland, if blended, would then also be regulable?
So I do think that even if the Court adopts a narrower approach to the question presented, it will still inevitably have to discuss to some extent what are the characteristics of an authentic “water.”
Daren Bakst: So before we get to other questions, I want to give each of you a chance, if you want to, to respond to anything you’ve heard so far. So, Bill, why don’t I start with you?
William W. Buzbee: Sure. So I guess one question that you alluded to, Daren, but I don’t think Damien and I squarely landed on was that the Supreme Court in West Virginia has strengthened what’s called the major questions doctrine. And so one thing that a lot of court watchers are looking at is in Sackett, how will this newly or more invigorated major questions doctrine possibly play a part in the outcome of Sackett? And I won’t lay it out fully, but the major questions doctrine started as a small bit of language in a case called Brown & Williamson decades ago which was really closely about looking in context what statutes say and then trying to figure out whether agencies had additional room to make shifts.
And so West Virginia has strengthened this but what’s important about it, and I think it’s just a big issue here, is the kind of actions that are at stake in this case are — I know the Sacketts feel strongly that they were wronged, but these are no different than the kind of disputes that have been coming up since 1972, okay? People want to do something in a wetland or a borderline wetland and they and regulators may clash.
So the major questions doctrine is really about has an agency suddenly claimed new power it never had? The answer is no, that’s not this. Is the agency moving in a direction that lacks a strong textual basis? No. Section 404 and the 1977 amendment adding language about wetlands expressly are about protecting wetlands from filling, regulations in place for 50 years. And so what’s interesting here is the Court might use this, but if you actually apply the major questions doctrine criteria, how they mostly come out is they would say no to the Sacketts. They would say West Virginia was a very different setting than business as usual with some on the ground skirmishing over the categorization of a disputed parcel.
Daren Bakst: Thanks. Damien?
Damien Schiff: No, I think that’s very well stated. And I don’t really disagree that the major questions doctrine as articulated in the Justice Roberts’ majority opinion is not really a good fit here. However, I do think that a coordinate cannon of construction, which we’ve been talking a little bit about, which was highlighted in Justice Gorsuch’s concurring opinion in West Virginia is relevant. In fact, actually, in that concurring opinion, Justice Gorsuch cited the Swank case as an example of this coordinate cannon of this federalism cannon. You could almost even argue that whether a statute radically reworks a traditional federal state allocation of power, that’s per say a major question. That’s one way that you could sort of relate the two.
But even if you don’t want to go that far, I do think that that coordinate cannon is relevant. It was certainly used in Swank. It was relied upon heavily by Justice Scalia in his opinion to defend his interpretation of the statute and to criticize Justice Kennedy’s interpretation and is one certainly that the Sacketts have relied upon in their briefing here.
Daren Bakst: Let me get back to a question. It is certainly difficult for prop managers to even know whether or not there would even be the need to find out whether or not there’s a waters of the United States on the property. Quite honestly, the language might very well be unconstitutionally vague. And I’m just wondering whether or not you think — and I would argue that many prop managers are being generally fairly innocent but not sophisticated developers and wind up getting faced not only with civil penalties but criminal penalties. So, Bill, I guess for the property managers that are kind of — given how vague the language is, how would you respond to those prop owners?
Peter Swire: I’ve worked on the environmental side when I was practicing law. I worked at a private law firm and advised clients. The bottom line is the statute and the regulations provide a lot of criteria. And hydrological engineers and others who work in certain regions where wetlands are an issue, they know very much the kind of rules of the road about what sort of properties are protected wetlands and are not. And, again, in the joint appendix here in 1996, people said what can we do here? And someone came by and said no, this is a wetland. You might be able to get a nationwide permit which is a, essentially, modest use of property where things are presumptively granted. But the bottom line is the statute, it’s not easy. I mean, there are going to be some tough calls here and there but generally, the statute and the regulations and the traditions are quite well-known, and people will be able to figure it out.
Daren Bakst: Damien, what’s your take on that?
Damien Schiff: Well, at least with respect to the Sacketts, it certainly is true that jurisdictional determination was done on the site in the 1990s. But in our record, there’s also the testimony of the Sacketts that they were unaware of that and that there was no indication either from their surveyors or from the county from whom they obtained their building permits or in their record of title or from the seller or anything as they testified in their investigation response to EPA that gave them any indication that their property was a wetland or otherwise federally regulated.
But I think even setting that aside, it is difficult for the average layman to have notice that a property that, as even the Ninth Circuit below in the Sackett’s case described as a soggy residential lot, it’s difficult in those circumstances to expect people to know ahead of time that there’s going to be this federal environmental law that my very well apply. And what makes it particularly challenging is that, at least under the significant nexus standard, even the agencies, I think, would say that well, to be sure, whether the properties regulated or not, you need to have the significant nexus analysis done, and that is a very expensive endeavor. I mean, there are some old figures that the Supreme Court has cited in a few cases that suggest that the permitting process can be very expensive into the hundreds of thousands of dollars.
And I can say just anecdotally that I don’t think that’s an absurd assessment at all. And there are amicus briefs that have been filed in our case that indeed emphasize that the cost of permitting even to find out whether one is even regulated can be very substantial. So I wouldn’t disagree at all, of course, with Professor Buzbee that in many instances, it’s going to be obvious that one is regulated or it’s going to be obvious that one ought to be regulated, especially when we’re talking about harmful pollutants, mobile pollutants, or we’re talking about industrial activities or things that otherwise clearly would be heavily regulated.
But when you talk about what are, I think, sort of are the quintessential uses of private property whether for homebuilding or agriculture or what have you, uses that haven’t ever really been considered as nuisances or otherwise threats to human health or welfare, I think it is asking a lot for the average layman to just sort of assume that he has to contact a wetlands consultant or he has to call the Army Corps office before he proceeds, especially when he’s received the green light from the local and state regulators with whom he otherwise would be normally involved with.
Daren Bakst: So as we wrap up, I want to get to some takeaways. And Damien, I’ll start with you. What are the key takeaways for the audience that you want them to leave with? And also, just kind of express why the public should even care about this case.
Damien Schiff: Well, one takeaway is [inaudible 60:42] Professor Buzbee, I do think that the Sacketts’ test is the textualist test. I think it is the test that is faithful to the text and therefore most likely to vindicate Congress’s intent which is not a single purpose. That is, yes, Congress wanted to improve federal water quality law and it certainly has done that through the Clean Water Act, but it wanted to do so in a way that would also not only respect the private property rights of individual citizens but also ensure that the state and local governments retain their preeminence over regulating land and water resources.
And, again, I think it’s only the Sacketts’ test based on Justice Scalia’s plurality opinion in Rapanos that achieves that. But ultimately, I think what’s important to emphasize is that it’s important to have an administrable test. It’s important to have a clear test. And it’s also important to have a test that will ensure adequate protection for the environment. And I think that it’s only the test the Sacketts’ proposed that really serves all three of those points.
Daren Bakst: Thanks, Damien. Bill, what are your takeaways?
William W. Buzbee: Okay, well, there’s twofold so — hold on, make sure. Can you hear me okay? Yeah. I just received a message telling me to mute myself which I did.
So first is for those who are following this case, the joint appendix has wonderful pictures which is hard to see but showing that this was not going into someone’s dry backyard. And there’s page after page of the back of the wetlands that were here, okay? And so, this is, again, not one of these cases of surprise but a situation where it was quite apparent these were wetlands and that’s what the joint appendix says. And so that’s part of it. So the environmental stakes are big. So that matters quite a bit.
And then the other I’d say is there’s a big question here about the Supreme Court’s legitimacy and the Supreme Court’s willingness to heed what Congress has chosen. We have a very strong six justice conservative majority that has in the last year and a half wielded its power with great might. And in this case, you do have a statute that has strong protections that are quite spelled out, strong federalism choices that are spelled out and allocate powers in certain ways, regulators given very specific tasks and procedures. This Supreme Court will reject what the Supreme Court has said should be the rule is that the courts need to follow what Congress sets forth in its goals and its detailed means, what it laid out through its text and structure. That’s what the Supreme Court said in the recent Becerra case.
And so I hope that the Court will do what it says it should do. If it doesn’t, then we really are in a situation where there’s a crisis that will live on because if the Supreme Court no longer is heeding what statutes say, then you have a court that is largely just freed up to do as it wishes. And that becomes a problem. Legislative supremacy is our central constitutional value in our democratic form of government under our Constitution. And The Federalist Society and the Heritage Foundation should all say follow the Constitution. Follow what Congress chooses, and that should be the rule. So I think the stakes are environmentally huge and constitutionally huge as well.
Daren Bakst: Bill and Damien, thank you so much. That was a great discussion. And of course, I want to thank all of you participating in today’s program or watching a recording of the event. And now, Sarah, I’m going to turn the program over to you.
Sarah Bengtsson: Thank you, Daren, for hosting and a big thank you to all of our panelists today for sharing your time and expertise with us. And thank you to our audience for tuning in as well. You can find more of our content on our website at REGproject.org or follow us on any major social media platform @fedsocrtp to stay up to date. With that, we are adjourned.
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