25 August 2022 |

EPA under threat, again


One note before we dive in – perspectives represented here are either mine or Stuart’s alone and don’t represent those of the EPA’s.

Elsewhere on the policy and legislation side of climate, the winds of change are stirring again in the Supreme Court. Stuart Nissenbaum, whom we interviewed for a past piece on what a day in the life at the EPA looks like, tipped me off to the fact that West Virginia v. EPA may well not end up being the only important Supreme Court case involving the EPA this year. 

In June, the Supreme Court’s West Virginia v. EPA decision prevented the EPA from directly regulating greenhouse gas emissions like CO2. For instance, the decision seemed it would prevent the EPA from making laws that might regulate emissions from or affect a phase-out of coal power plants in the U.S. However, the decision didn’t gut existing precedent or legislation, like the Clean Air Act, as some feared it might.

As an aside, tucked away in the recent Inflation Reduction Act was a clause that defined carbon dioxide as an air pollutant. This legislative sleight-of-hand might help the EPA regain more range of motion to regulate CO2 emissions under the Clean Air Act, even in the wake of West Virginia v. EPA. TBD on how that plays out!

Back to the main topic of conversation. The Supreme Court isn’t necessarily done hamstringing the EPA this year. Another case that should be on folks’ radars? Sackett v. EPA. The case centers on whether protections for wetlands in the U.S. in their current form will be upheld. Specifically, what’s in question is how the EPA determines which streams and wetlands are protected from pollution federally

Here’s the longer story – twenty years ago, the Sackett family bought land near a lake in Idaho. They wanted to build a home on their land! One problem is that the land they bought is a wetland and close to (within ~300 feet) the lake. Should the Sackett family be able to build a house on the wetland? Or are wetlands “waters of the United States” under the Clean Water Act, 33 U.S.C. § 1362(7)?” That’s the genesis of this court case.

While the question of building one house or not seems like a myopic manifestation of protections for wetlands and rivers, the results from the ruling could be significant for the EPA’s ability to protect all different types of waterways around the country. Here’s what Stuart had to share from his perspective. 

In a worst-case scenario, Stuart reckons the ruling could: 

…gut the Clean Water Act, undermine Rapanos v. EPA (which upheld much of the EPA’s ability to protect wetlands and waterways) and redefine navigable waters and waters of the U.S.

Thankfully, that’s not what he foresees as the most likely outcome:

I don’t think [the decision] will [gut] the EPA’s ability to regulate via the Clean Water Act… a similar case has been heard, and though it was a more balanced bench, Scalia and Kennedy still wrote concurring decisions that give us the definitions we have now (see Rapanos v. EPA). Additionally, in 2020, a more conservative bench (shortly before Barrett was added) heard a case on navigability in County of Maui v. Hawaii Wildlife Fund. In this case, both Roberts and Kavanaugh joined the liberal wing of the bench to suggest groundwater should be considered for protection if point source pollution flows through it into navigable waters. This tells us that there is at least some willingness to protect waterways among conservative justices. I don’t think that the court will reach a broad reconsideration of the rule. 

What’s next? Oral arguments will proceed on October 3rd. We’ll follow up with more information as we become privy to it. And thanks to Stuart for contributing again – he’s quickly becoming our resident EPA (and Supreme Court) expert.