The Idaho family that overthrew the Obama administration’s wetlands regime in the Supreme Court is back, much to the dismay of the Biden administration. On Monday, the Supreme Court issued a surprise order agreeing to review, for the second time, the Environmental Protection Agency’s (EPA) decade-long effort to regulate the half-mile subdivision lot. acre of a family in Idaho. The High Court classified its review grant as “limited” to a single issue. This limited question, however, dominates the debate over the allowable scope of regulatory scrutiny of “waters of the United States” (WOTUS), including wetlands, under the federal Clean Water Act (CWA). The case could have a significant impact on the scope of regulatory enforcement authorized by the federal government.
In the second round of the Sackett dispute, the EPA determined that the Sacketts’ lot features were jurisdictional wetlands, requiring them to obtain a permit before placing any “fill” on the property to solidify it for construction. (An EPA enforcement action against the Sacketts for prior placement of sand and gravel fill on the lot was the basis of the saga’s first round.) a “significant connection” to a lake adjacent. The EPA’s selection of the so-called significant connection test is what the Supreme Court agreed to consider.
Wetland regulations have been unclear for decades. And in 2006, the Supreme Court did it more than ever. In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court’s third major consideration on the scope of federal regulatory authority over WOTUS, the Court split, with no single analytical approach garnering a majority of five. A conservative quartet, led by Justice Scalia, held that for a feature to come under CWA jurisdiction, its water flows had to be “relatively permanent.” This approach would significantly narrow the scope of jurisdiction, leaving many features subject to regulation at the state level, but not by the federal government. The liberal quartet, led by Justice Stevens, reportedly largely deferred to federal agencies deciding that a feature warranted regulation.
The only holdout, Judge Kennedy, sided with the Scalia plurality on the final decision of the case, but not on the rationale. Kennedy would authorize the exercise of jurisdiction over an item where the record demonstrated that the item in question had a significant connection to an undisputed waterway. (In the Sackett case, that other waterway, according to the EPA, is the nearby lake.) Although Rapanos ended without a majority of precedent ruling on the proper test to determine WOTUS, most courts across the country have held that the significant connection test – adopted by only one of the nine justices and rejected by the eight more – was the operational test.
Thus, after the Supreme Court dismissed the Sackett/EPA dispute after the first round, the EPA upheld its assertion of jurisdiction based on the significant connection test of Rapanos. The Sacketts sued to invalidate the exercise of jurisdiction. The United States Court of Appeals, Ninth Circuit, sided with the EPA and upheld based on the finding of a substantial connection between the lot and the lake. Now the Supreme Court welcomes the Sacketts back, and it’s Rapanos and Kennedy’s solo test that are in play.
And the high court is a very different place than it was in 2006. Three of the four justices making up the Scalia quartet at Rapanos remain on the Court — Justices Thomas and Alito and Chief Justice Roberts. A proven and demonstrable conservative, Judge Gorsuch, replaced Scalia. Additionally, President Trump nominated Judge Kavanaugh to replace Kennedy, and when he was on the United States Court of Appeals, Kavanaugh indicated that he supported Scalia’s opinion in Rapanos. Finally, Justice Ginsberg, a member of the liberal quartet of Rapanos, was replaced by another curator and former Scalia clerk, Justice Coney Barrett. Thus, it would seem that at least five, if not six, judges would adopt the Scalia opinion in Rapanos.
Given the current composition of the Court in relation to the alignments Rapanosshould the Court reconsider the appropriate test for defining jurisdictional WOTUS, it seems likely that the significant connection test would be rejected, support for a test closer to the Scalia “relatively permanent water” standard might emerge, and the exercise of the EPA’s jurisdiction over the Sackett fate would likely be sent back to the drawing board for consideration under this new standard.
This development comes at a very inopportune time for the Biden administration. All too predictably, one of the first actions of the Biden administration was to undo the Trump administration’s efforts on WOTUS. These efforts were largely aimed at undoing the efforts of the Obama administration. Kennedy’s significant connection test has been at the heart of all the regulatory ping-pong. Recently, in an attempt to stabilize the regulatory landscape, the Biden administration re-adopted Reagan-era regulations that predated Rapanos. The EPA says it is working on a new rule that ensures the regulated community will be “sustainable” and based on broad input from all sectors. Based on these pending regulations, the Biden administration urged the Supreme Court to reject the Sacketts’ bid for a runoff. Apparently, the Supreme Court does not want to wait.
A decision on Sackett 2.0 is expected in 2023. If you have any questions about this or related rights or regulatory issues, please contact David Smith at [email protected]