The Fate of the Clean Water Act Sits with the Supreme Court—And Mighty Partner Earthjustice Weighs In

Wetlands might not grab attention the way scenic rivers or iconic waterfalls do—but they’re crucial parts of our ecosystems, feeding into major waterways for drinking water, helping to prevent flooding, supporting wildlife, and filtering out pollutants. And this year, huge swaths of these delicate systems—currently safeguarded by the Clean Water Act—could lose their protection, depending on how the Supreme Court rules in the current case Sackett v. EPA. And this ruling could have impacts far beyond wetlands. Seasonal and ephemeral streams, arroyos, mountain lakes and ponds all may lose their current protections. Mighty Partner Earthjustice has stepped in to file amicus briefs, fighting to protect these vital water systems. Here’s where things stand right now.

What is Sackett v. EPA?

The case, which saw opening arguments presented in October 2022, was brought to court by Michael and Chantell Sackett of Idaho. The Sacketts had bought a lot near Idaho’s Priest Lake, and without a required permit, dumped 1700 cubic yards of gravel and sand into sensitive wetlands—including areas the Environmental Protection Agency (EPA) had previously determined were protected by the Clean Water Act. When the EPA told the Sacketts to undo the damage they caused (who owned a construction and excavation company so they surely knew better), the Sacketts sued instead with the help of the Pacific Legal Foundation, a pro-industry group that is known to seek to dismantle key environmental protections.

What’s really at stake?

Looking at the big picture, this case will have tremendous environmental impact. “The Sacketts and their industry allies are asking the Court to adopt an extraordinarily narrow reading of the Clean Water Act that would strip protections from 45 million acres of the country’s wetlands,” says Earthjustice Senior Vice President of Program Sam Sankar. 

With water and water dependent ecosystems in the West becoming increasingly threatened by drought, losing these protections would be devastating. Urban areas need drinking water, and agriculture needs water for production. Both rely on the health and protection of wetlands, seasonal streams and other waters threatened under this ruling. A ruling in the Sacketts’ favor would significantly limit the range of waters that the Clean Water Act protects, opening up millions of acres of these sensitive waters for possible contamination and destruction. In the wake of climate change, this is not a risk we can take. Our food, water and our lives quite literally depend on protecting healthy water resources. 

Why is the Court choosing this case?

The 1972 Clean Water Act protects the “waters of the United States.” The Sacketts asked the Court to re-examine the meaning of that phrase, and with it, the scope of the Act’s protections. At the time, EPA and the US Army Corps of Engineers (the agencies that administer the Act) were developing new science-based regulations to define that phrase. Those regulations would replace Trump-era rules that courts had struck down. The Court knew that new rules were being developed, but it took the case anyway, threatening to take the issue out of the hands of scientists and into the hands of the judiciary. 

In late December, EPA and the Corps issued their new rule. The rule offers a clear, administrable, and science-based definition for what waters are protected by the Clean Water Act. But industry and their allies don’t like it. They want the Court to re-interpret the law itself to shrink what qualifies as a “water of the U.S.” so industries and developers can pollute wetlands—and destroy them—without legal review. When the Trump EPA tried to issue regulations that would have similarly narrowed the Act, Earthjustice sued, and got the regulations overturned in court.  But now industry is trying to get the law changed again, this time by the Supreme Court’s new conservative supermajority. In fact, The Supreme Court’s decision to take up the Sackett case before the agencies finalized new regulations raises questions about its agenda and threatens to undercut protections for our nation’s waters even as this rule seeks to strengthen them.

Judiciary v. Science

“There will always be difficult line-drawing problems in environmental regulation, but time has shown that those lines should be drawn by scientists and politically accountable lawmakers—not unelected judges,” Sankar says. The reality is that all waters are connected, he explains. And during the October 2022 hearings, even the Court’s conservative justices wrestled with that.

“As our nation confronts the climate crisis, biodiversity collapse, and environmental injustice, we need judges who recognize the value of our federal environmental laws, the importance of sound science, and the proper role of the judiciary,” Sankar says. “We need the Supreme Court to uphold the law for people and our planet.”

How is Earthjustice making a difference?

As the largest environmental law nonprofit in the country, Earthjustice has taken thousands of legal actions on behalf of the environment. This time, Earthjustice represents 18 federally recognized Tribes who rely on waterways flowing through their lands for food, economy and culture. To help uphold and strengthen the Clean Water Act on their behalf, Earthjustice filed an amicus brief to the Supreme Court. An amicus brief is information, insight, or expertise provided to assist the court by someone who is not party to the case. 

Where are we with the case now?

With the EPA and the U.S. Army Corps of Engineers recently issuing their rule identifying waters protected under the Clean Water Act, they underscored the idea that many waters are connected, and therefore need to be protected in order to safeguard downstream communities and the environment. But the Supreme Court could still rewrite the legal principles the new rule is based on. A ruling in the case could come at any time, and will definitely come before July. 

What can we all do?

Courts matter, when it comes to protecting the environment. We have agency; and we have Mighty Partners like Earthjustice protecting our rights to clean water, air and more. See how Earthjustice builds power here. Because the Earth DOES need a good lawyer!