The Supreme Court Will Decide the Future of Clean Water for Generations

WASHINGTON, D.C. – On Monday, October 3, 2022, the U.S. Supreme Court heard oral arguments for the case Sackett v. U.S. Environmental Protection Agency, deliberating what waterways and wetlands are protected under the Clean Water Act. The Supreme Court’s decision to hear Sackett v. EPA is another troubling sign that the new supermajority in the nation’s highest court is pursuing a deregulatory path. Based on an extraordinarily narrow reading of the law, the Sacketts and their industry allies asked the Court to strip protections from 45 million acres of the country’s wetlands.

Earthjustice filed an amicus brief to the Supreme Court on behalf of our clients – 18 Tribes who rely on waterways for food, economy, and culture – and are supportive of water protections.

“Congress passed the Clean Water Act to protect all our nation’s waters, and you can’t do that unless you protect wetlands,” said Sambhav Sankar, Senior Vice President of Programs at Earthjustice. “Today we saw even the Court’s conservative justices wrestle with the reality that all waters are connected, and the fact is that this industry-sponsored effort isn’t about protecting private property, it’s about radical deregulation. 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.”

The Sacketts brought their case to the Court hoping to persuade the new conservative supermajority to revisit Rapanos v. United States and rewrite the Clean Water Act. After the Court’s 2006 decision in Rapanos, the EPA and Army Corps developed a workable regulatory system to define which wetlands are protected by the Clean Water Act – namely, the ones that substantially impact downstream water quality. EPA and the Corps are now responding to concerns about the regulatory system by writing new regulations to further clarify the issue.

The Court’s decision to grant that request during an active rulemaking process – the result of a legal challenge brought by Earthjustice – demonstrates its willingness to disregard traditional principles of judicial restraint in service of a deregulatory agenda. But at today’s argument, we saw that agenda collides with the reality of environmental protection. As several justices recognized, Congress expressly designed the act to protect the “integrity” of our nation’s waters, and removing protections for wetlands – which filter pollutants, prevent harmful flooding, and more – would defy Congress’ purpose.

Congress enacted the Clean Water Act to protect all the “waters of the United States” to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Today the Court struggled to reconcile the Sacketts’ and industry-sponsored arguments with the act’s broad language, Congress’ purpose, and with the reality that all waters are connected.

The government’s position – and that of the environmental community – is that we should decide which wetlands the act protects by considering the goals of the act (to protect water quality) and the science (the degree to which wetlands are connected to other waters).

The Sacketts want the Court to rule that the act only protects wetlands that are physically indistinguishable from navigable water bodies. As even some conservative justices acknowledged, this arbitrary line would defy the text and purposes of the act, decades of consistent legal interpretation, and the science of environmental protection. The Sacketts’ approach would seriously threaten our nation’s waters.

A Supreme Court decision is likely in early 2023.

What is Sackett v. EPA about?

Sackett v. EPA was brought by Michael and Chantell Sackett: Idaho landowners backed by polluting industries, including the oil and gas industry, mining companies, developers, and corporate agribusiness. The Sacketts are represented by the Pacific Legal Foundation — a longtime anti-environmental legal group.

The Sacketts started their dispute with the U.S. Environmental Protection Agency in 2007, after purchasing a parcel of land that was subject to Clean Water Act protections. The parcel — which included sensitive wetlands a stone’s throw from Priest Lake, one of the largest lakes in Idaho — required a wetlands permit before being developed.

Instead of following EPA’s processes to get a permit to fill sensitive wetlands to build a lake house, the Sacketts sued. This 14-year legal battle now has them before the Supreme Court, for the second time. (The Sacketts first appeared before the justices in 2012, securing the right to bring a court challenge against an EPA compliance order.)

The Sacketts’ case against the EPA, however, is not about a parcel of land, let alone a lake house, but is a coordinated push by industry polluters that want to blow a hole in the Clean Water Act, bulldoze cherished wetlands, and contaminate the country’s streams with waste from mining, oil and gas, and agro-industrial operations as they see fit, just to maximize their profits.

Brief of Menominee Indian Tribe of Wisconsin and 17 Federally Recognized Indian Tribes as

Amici Curiae in Support of Respondents

INTERESTS OF AMICI CURIAE

The Amicus Parties to this brief are federally recognized Indian Tribes from across the United States (the “Tribes”).

In the Midwest, the Menominee Indian Tribe of Wisconsin, the Bay Mills Tribal Community, and the Bad River, Fond du Lac, and Grand Portage Bands of Lake Superior Chippewa count thousands of lakes, wetlands, streams, and the Great Lakes as an integral part of their homes, critical to their cultural and subsistence resources.

In the Southwest, the Tohono O’odham Nation, the Pascua Yaqui Tribe, the Navajo Nation, and the Pueblo of Laguna rely on ephemeral and intermittent streams and rivers with flows that rely on significant storms to water their crops, sustain their homes, and serve as cultural touchstones.

On the West Coast, the Swinomish Indian Tribal Community, the Quinault Indian Nation, the Yurok Tribe, the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, and the Puyallup Tribe of Indians are people of the salmon, dependent upon healthy rivers and tributary streams flowing from the mountains to estuary wetlands at the coast for their traditional foods, subsistence economies, cultural resources, and lifeways.