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Trends

2022

Supreme Court preview

John R Jacus

Summary

  • Summarizes the environmental, energy, and natural resources cases to be decided by the U.S. Supreme Court in its upcoming session (October 2022 Term).
  • Explains why Petitioners have asserted in their briefs that Justice Kennedy’s “significant nexus” test should be abandoned.
  • Analyzes why permitting agencies, and permittees alike will benefit from a lasting measure of certainty concerning the scope of jurisdictional WOTUS following the Court’s decision.
Supreme Court preview
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This is the second edition of Trends’ Supreme Court Preview, a summary of environmental, energy, and natural resources cases to be decided by the U.S. Supreme Court in its upcoming session (October 2022 Term). Because there is a general dearth of environmental, energy, and natural resources cases confirmed for argument in the October 2022 Term, we focus exclusively and in depth on the case of Sackett v. Environmental Protection Agency.

Clean Water Act: Definition of “Waters of the United States”

Sackett v. Environmental Protection Agency, Docket No. 21-454

This case involves a second trip to the U.S. Supreme Court for Michael and Chantell Sackett, who purchased a residential lot near Priest Lake, Idaho in 2004. When they began to prepare the lot for construction by placing sand and gravel, they were issued a compliance order by the U.S. Environmental Protection Agency (EPA) indicating they could not place such fill on their lot without a Clean Water Act (CWA) section 404 dredge and fill permit because their lot contained wetlands. The Sacketts brought suit against EPA in the U.S. District Court for the District of Idaho arguing the CWA did not apply to their property. The District Court for the District of Idaho dismissed the suit for lack of subject matter jurisdiction, concluding there was no final, reviewable agency action. Sackett v. EPA, No. 08-cv-185-N-EJL, 2008 U.S. Dist. LEXIS 60060, 2008 WL 3286801 (D. Idaho Aug. 7, 2008).

The Sacketts appealed the District Court’s dismissal to the U.S. Court of Appeals for the Ninth Circuit (Sackett v. EPA, 622 F.3d 1139 (9th Cir. Sept. 17, 2010)), which affirmed, and then to the U.S. Supreme Court. In Sackett I, the Supreme Court held the Sacketts could bring a civil action under the Administrative Procedure Act against EPA challenging its final action and remanded the case to the District Court. Sackett v. EPA, 566 U.S. 120 (March 21, 2012). On remand, the District Court granted summary judgment, holding that EPA correctly determined wetlands were present on the Sacketts’ property and constituted waters of the United States (WOTUS) subject to jurisdiction under the CWA. The court’s decision was based on several factors, including that the wetlands were adjacent to a navigable water body and hydrologically connected by a shallow subsurface flow to the adjacent lake. Sackett v. EPA, No. 2:08-cv-00185-EJL, 2019 U.S. Dist. LEXIS 239377, 2019 WL 13026870 (D. Idaho Mar. 31, 2019). The Sacketts again appealed, and the Ninth Circuit applied the “significant nexus” test authored by Justice Kennedy in the plurality opinion of Rapanos v. United States, 547 U.S. 715 (2006), affirming the District Court’s grant of summary judgment and upholding EPA’s assertion of jurisdiction to regulate the Sackett’s residential lot under the CWA. Using Justice Kennedy’s test, the Ninth Circuit found that the wetlands on the Sackett property, by virtue of the hydrologic connection, had a “significant nexus” to the lake, a traditional navigable water. Sackett v. EPA, 8 F.4th 1075 (9th Cir. Aug. 16, 2021). The Sacketts again filed a petition for certiorari with the U.S. Supreme Court, which the Court again granted, but limited to the question of “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).”

Of course, the Supreme Court’s impending consideration of the “proper test” to be addressed in Sackett II has been preceded for many years by back-and-forth rulemaking and litigation challenges to differing EPA and U.S. Army Corps of Engineers (Corps) rules attempting to define WOTUS, all coinciding with much of the Sackett’s circuitous legal battle. Major milestones include the Obama administration’s promulgation of the Clean Water Rule in June 2015, which referenced and sought to implement Justice Kennedy’s concurring opinion in Rapanos v. EPA, and defined WOTUS to include eight categories of jurisdictional waters. Multiple lawsuits challenged the Clean Water Rule, the specific outcomes of which exceed the scope of this article. With the change in presidential administration, the Trump administration’s EPA and Corps repealed the Clean Water Rule and eventually replaced it the Navigable Waters Protection Rule in 2020, which established four categories of waters considered to be within CWA jurisdiction and was aligned more closely to the plurality opinion of the late Justice Scalia in Rapanos, in part by including “perennial and intermittent tributaries that contribute surface water flow” to navigable waters; this excluded watercourses with less than intermittent flow regimes.

As with the Clean Water Rule, many groups challenged the Navigable Waters Protection Rule, and on August 30, 2021, the U.S. District Court for the District of Arizona vacated the rule. Pasqua Yaqui Tribe v. United States EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021). Shortly thereafter the Biden administration’s EPA and Corps indicated they would interpret WOTUS in a manner consistent with the “pre-2015 regulatory regime,” taking the definition back to the so-called “Rapanos Guidance” promulgated by EPA and the Corps that applies both the Kennedy “significant nexus” test and the Scalia “continuous surface connection” test. EPA also began a stakeholder process to support a future rulemaking step to refine the definition of WOTUS. It is against this backdrop of rulemaking challenges and replacement definitions of WOTUS that the Sacketts’ challenge of the “proper standard” of what are “WOTUS” will be determined.

The Petitioners have asserted in their briefs that Justice Kennedy’s “significant nexus” test should be abandoned, instead urging a two-part test similar to the plurality in Rapanos (relative permanence of the “navigable water” and a continuous surface connection to wetlands), but with additional scrutiny over Congress’ commerce clause authority to regulate intrastate waters. In its response brief, the Biden administration argues that a “restrictive version of the ‘continuous surface connection’ test articulated by the [Rapanos] plurality . . . has no grounding in the CWA’s text, structure or history” and notes that such an approach would seriously compromise the Act’s protections afforded to many adjacent wetlands and the waters associated with them. Whatever the outcome, the Sacketts, permitting agencies, and permittees alike will benefit from a lasting measure of certainty concerning the scope of jurisdictional WOTUS following the Court’s decision

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