In a unanimous vote, the Supreme Court ruled on Thursday that the EPA had overstepped its authority with its attempt to massively expand its regulatory scope under the Clean Water Act.
The Court unanimously ruled for the plaintiffs in the case, styled Sackett v. EPA, who had challenged the agency’s ruling they could not make productive use of property they purchased decades ago using a rationale that would vastly expand the law’s original intent. As written, the Clean Water Act allows EPA to regulate the “navigable waters of the United States,” a term that had, prior to the agency’s overreach in the Sackett case, been held to mean a body of water that could be navigated by a vessel.
For the last 17 years, the Sackett family has been entangled with the agency over some patches of sporadic wetlands that appear on their property during rainy seasons, which the EPA wishes to regulate under this “navigable body of water” clause. Writing for the majority in a more narrowly-divided concurring decision that will now govern the specific allowable interpretation of the law, Justice Samuel Alito holds that only wetlands that are “indistinguishable” from larger nearby bodies of water can be regulated under the Clean Water Act.
“Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,” Alito wrote.
The final dispensation of this case should help to resolve a long-running battle of writing, rescinding and re-writing of “Waters of the United States” regulations that go back to the George W. Bush administration. The EPA started the process of drafting such a regulation in the 2007/08 time frame, but it was never formally proposed under the Administrative Procedures Act which governs the federal regulatory process.
After the Democrat-dominated congress of 2009-10 tried and failed to pass legislation that would have authorized the EPA’s desired expansion of regulatory authority, the agency itself did move forward with a complex proposed regulation during President Obama’s second term in office. The authority sought by the EPA in that regulation was so expansive that critics argued it would give the agency the ability to regulate every drainage ditch and even swimming pools in the country.
Indeed, the expansion in that regulation would have been so broad that it would have no doubt enabled the EPA to regulate the planning, construction, and repairs of streets in cities like Houston, Texas, which are designed to cause rain to drain into the network of creeks and bayous that run through the city’s limits. If Houstonians think it’s hard to get a pothole filled by the local officials who currently govern that process, imagine how long you would have to wait if some bureaucrat at EPA headquarters in Washington, D.C. ruled over the budget.
That version of the regulation was in the final stages of the approval process when Donald Trump shocked everyone by winning the 2016 presidential election. The Trump administration quickly acted to pull the Obama version back and substituted a scaled-down version adhering to the original intent and text of the Clean Water Act.
Naturally, Biden’s EPA officials acted quickly to rescind the Trump version shortly after they assumed office in 2021, re-introducing another expansive regulation. That new regulation was finalized in January, 2023, even as the Sackett case was being considered by the Supreme Court.
The Supreme Court’s decision in the Sackett case will now force another rewriting of the regulation to better conform to what the law actually says, rather than what self-aggrandizing bureaucrats wish it said.
Naturally, radical activists are outraged. “The Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands,” Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a statement. “This decision will cause incalculable harm. Communities across the country will pay the price.”
But what the Supreme Court really did in this case was deliver EPA’s bureaucracy a much-needed lesson on the separation of powers contained in the constitution, and a warning that its regulatory actions must have a legitimate basis in the actual law.
God Bless America.
David Blackmon is an energy writer and consultant based in Texas. He spent 40 years in the oil and gas business, where he specialized in public policy and communications.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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