Supreme Court Ruling Guts the Clean Water Act—What’s Next?

You may have seen the headlines: The Supreme Court’s recent ruling in the landmark case Sackett v. EPA effectively decimates Clean Water Act (CWA) protections in regard to wetlands. And while huge swaths of water systems will now be vulnerable as a consequence, the effects of the ruling may ripple far beyond that, into environmental law as a whole. Here we’ll examine exactly what happened, what it means, and what’s next.

What is Sackett v. EPA?

A quick summary: A couple in Idaho (the Sacketts) bought a lot near Priest Lake, and without obtaining the required permit, dumped 1700 cubic yards of gravel and sand into sensitive wetlands. The affected areas had previously been determined by the Environmental Protection Agency (EPA) to be protected by the CWA so the EPA ordered the Sacketts to undo the damage they caused. Instead, the Sacketts sued, with support from the Pacific Legal Foundation, a pro-industry group known for seeking to dismantle key environmental protections. On May 25, 2023, the Court ruled in favor of the Sacketts, agreeing that federal regulators overstepped in that case. But instead of deciding the Sackett’s case narrowly, the Court went further, siding with industry and property rights groups to aggressively narrow the definition of waters covered by the CWA in general.

Why was this case important?

One key issue at stake in this case was the interpretation of the legal concept of “waters of the United States,” often referred to as WOTUS. The Court’s ruling narrowed the definition of WOTUS, therefore shrinking what’s covered under the CWA, only protecting wetlands that “as a practical matter indistinguishable” from surface waters. 

“More than 118 million acres of formerly protected wetlands now face an existential threat from polluters and developers,” says Sam Sankar, Earthjustice Senior Vice President of Programs, in a press release.

The Court’s decision came a few months after the EPA and U.S. Army Corps of Engineers issued long-anticipated regulations clarifying that very WOTUS definition, essentially ignoring the consensus agreed upon by scientists and regulators in the interest of protecting the environment and providing clean water to citizens. 

“The Sackett decision undoes a half-century of progress generated by the CWA,” says Sankar. Earthjustice, a Mighty Partner, had filed amicus briefs in the case on behalf of 18 Tribes who rely on waterways for food, economy, and culture, explaining the importance of preserving precedent interpretations of the CWA. 

How does this ruling go beyond just clean water?

The Court itself acknowledged problems in its opinion. Justice Kavanaugh explained that the new test for WOTUS created by the ruling “will leave some long-regulated adjacent wetlands no longer covered by the CWA, with significant repercussions for water quality and flood control throughout the United States.” But Earthjustice Director of Strategic Legal Advocacy Kirti Datla explains that this ruling’s negative effect goes beyond just those specific waters. On Twitter, she broke it down: “It’s particularly bad because of the seeds [the opinion] planted for future attacks on statutes like the CWA.”

The Court’s decision requires Congress “to enact exceedingly clear language” on rules that may affect private property, which could be read to call into question any number of previously established environmental regulations. “The opinion in Sackett gives those who want to attack the statutes that protect our health and safety new ammunition to do so,” Datla tweeted.

What’s next?

Environmental organizations like Earthjustice are concerned that the Court’s current supermajority has ignored both science and the principle of judicial restraint in its rulings, and continues to pursue a deregulatory, pro-industry, anti-environment agenda. There is still theoretically room for states to enact protections, and the Biden Administration’s definition of WOTUS—developed by the EPA and Army Corps of Engineers—to possibly outlive the Sackett ruling. But for now, Earthjustice is joining with other environmental advocates to use every appropriate legal tool to counter the Court’s ruling and strengthen the CWA.

“The Court’s decision to deregulate wetlands will hurt everyone living in the United States,” says Sankar. “Earthjustice will continue to fight to protect our waters to ensure the health of communities and ecosystems for decades to come.”