In a 5 to 4 decision May 25, the U.S. Supreme Court weakened the federal government’s ability to enforce laws to prevent water pollution, ruling that the 1972 Clean Water Act does not allow the Environmental Protection Agency to regulate discharges into some wetlands near bodies of water. The case, Sackett v. EPA, involved an Idaho couple, Michael and Chantell Sackett, who tried to build a house on property they purchased in 2005. The couple filled marshland on their property with sand and gravel to prepare for construction. But the EPA ordered them to stop construction and return the property to its original state. The Sacketts responded by suing the agency.
The high court’s ruling dramatically reduces the jurisdiction of the Clean Water Act, dismantling protections that have for more than 50 years safeguarded the nation’s waters. Environmental groups maintain that repealing critical protections for tens of millions of acres of wetlands threatens the sources of clean drinking water for millions of Americans.
Between The Lines’ Scott Harris spoke with Tarah Heinzen, legal director with the group Food & Water Watch, who discusses the consequences of this Supreme Court ruling for the environment and people and what states can do to strengthen local regulations to protect wetlands.
TARAH HEINZEN: The Clean Water Act’s whole objective is to protect and maintain the integrity of the nation’s waters. This is a law that’s about protecting water quality. And Congress knew and we’ve known for many decades, that you can’t protect downstream waters if you don’t protect the wetlands and the small streams that feed them.
And so, to give effect to that clear intent of the law, for many years, EPA has adopted a test that has tried to protect as many waterways as possible. And so it has created a test where the Clean Water Act says, for example, that if you have a wetland that’s adjacent to a protected waterway, like a lake or a river or a stream that wetlands should be protected because it’s adjacent.
What the five justice majority led by Justice Alito, did here, is completely upend these longstanding protections and throw out those tests. It radically reinterpreted the Clean Water Act and created a new test where only wetlands that have a continuous surface connection to a protected waterway are themselves protected. So only wetlands that are actually touching a river or a lake.
This is, of course, not based on science. We know that that’s not the only way that waters interact and are connected. But there’s significant nexus idea is now completely gone. A wetland that’s just nearby a river that certainly has effects on its, you know, its integrity, its health. That’s no longer enough to protect this wetland.
What this means is that in those cases, developers and polluters can dump fill material into wetlands. They can dump pollution into wetlands without even getting a permit to do so. And the scope of this decision is vast. This opinion is going to take tens of millions of acres of wetlands out of protection from all of these destructive activities across the country.
SCOTT HARRIS: Tarah, I’ve heard that wetlands, of course, are critical in flood protection, especially when we have rising water levels with climate change. Water quality overall is impacted by the pollution that’s dumped in to wetlands. And of course, we all depend on clean water. And if there’s more pollution in these waters, as I understand it, municipal treatment centers for water are going to be having to be ramped up. And that’s more expense for consumers. There’s lots more, I’m sure. But tell us about what some of the impacts that our listeners are going to feel from this ruling.
TARAH HEINZEN: No, that’s exactly right. I mean, wetlands affect nearby waterways in so many ways. They filter pollutants and protect clean water downstream. As you mentioned, they control flooding. They can also help manage water supply and droughts. And of course, both flooding and droughts are becoming more extreme with climate change.
Wetlands also provide important wildlife habitat, which then, of course, is important for downstream ecosystems. So protecting wetlands and protecting other waterways really go hand in hand.
SCOTT HARRIS: Tarah, with the federal EPA weakened, what can state governments do to strengthen enforcement at the local level and protect wetlands?
And a second part of that question would be what can Congress do to reverse this ruling and disable the weakening of EPA regulations at the Supreme Court — what all those “brilliant Nobel Prize-winning scientists” in the Supreme Court — have done here?
TARAH HEINZEN: Yeah, that’s a great question, because we certainly can’t just accept this as the status quo. But ultimately, Congress does still have authority to revise the language of the statute, make it even more explicit that small streams and wetlands are, in fact, protected. And that would supercede a Supreme Court opinion based on the current language.
Of course, the Supreme Court could also, again, reverse itself. We’ve seen the Supreme Court look at this question of which waterways are protected a number of times. But with this court, that doesn’t seem likely anytime soon.
So I think ultimately we need to be working and building power towards that long-term congressional fix to restore the true intent and scope of the act.
But as you mentioned, in the meantime, states can and absolutely must take action to protect waterways that are left out of protection by the Sackett decision. States have the authority to go above and beyond what EPA requires under the Clean Water Act.
And some have, according to the Environmental Law Institute. Twenty-four states, though, do rely entirely on the federal definitions of waters of the United States and only protect those waterways.
So about half of states currently are going to have a lot of wetlands taken out of protection. About 19 states do currently protect a lot of the waterways removed from protection by this decision.
So in some states, mostly on the coasts, the harmful impacts will be lesser than on many of the states in the middle of the country and in the south.
But a lot of work needs to be done at the state level to pass legislation and fill the gaps in those 24 states that have been created by this opinion.
And so people will need to be working to educate their state lawmakers and to help build pressure to mitigate the damage from this opinion and make sure that states step up where the Supreme Court has failed.
Listen to Scott Harris’ in-depth interview with Tarah Heinzen (17:02) and see more articles and opinion pieces in the Related Links section of this page.
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