On May 25, the Supreme Court issued an opinion in Sackett v. EPA that will remove protections for millions of acres of wetlands across the country and gut the Clean Water Act.
Enacted in 1972, the Clean Water Act is one of our nation’s bedrock environmental laws. In writing the Act, Congress was attempting to restore our nation’s waterways at a time they were being abused by polluting industry. More than 50 years ago, Congress clearly laid out the jurisdiction of the Act, and no Congress since has departed from that jurisdiction by amending or repealing the law.
The Court’s opinion goes far beyond any previous interpretation of the Clean Water Act, including the recently invalidated “Dirty Water Rule” issued by Andrew Wheeler’s EPA in 2019. In doing so, it removes protections for wetlands that are important habitat for migratory waterfowl, help reduce the impacts of floods, and help to naturally remove pollutants from our larger rivers and streams. Now, real estate developers, mining companies, and other polluters can dredge and fill wetlands that have been protected by the Clean Water Act for the past 50 years.
While it will take years to understand the full force of this limitation of the Clean Water Act’s jurisdiction, other members of the Court have pointed out that this new jurisdictional test for wetlands imperils wetlands cut off from “traditionally navigable waters” by levees or roads. In Missouri, we have thousands of acres of wetlands with these characteristics. Now, polluters can have a free-for-all — dredging, filling, or dumping into these wetlands where Missourians hunt, fish, and paddle.
The majority’s opinion ignores decades of well-established precedent and clear instructions from Congress. The opinion in Sackett shows that a slim majority of the court are unwilling to honestly take stock of laws Congress has passed and fairly determine their scope. This decision continues a troubling trend at our highest court that elevates private property interests at the expense of longstanding laws protecting public health and the environment. It is even more troubling when the case involves the most critical resource we have: water.
We need Congress to step up to provide clarity and restore common-sense protections for our nation’s water and wetlands. Unfortunately, we will also have to hope that if Congress passes such a law, that this Court does not invent more reasons to overrule Congress’ clearly announced intent, as they did in May.