A new Supreme Court opinion is terrible news if you care about clean water

[In It to Win It]

Vox

Alito’s opinion is at odds with the text of the Clean Water Act

The specific dispute in Sackett involved Idaho landowners who wanted to fill in what a federal appeals court described as a “soggy residential lot” with dirt and rocks so that they could build a house on it. The lot is near a tributary that feeds into a creek, which itself feeds into Priest Lake, a sufficiently large body of water that no one really questions if it is subject to the Clean Water Act.

Although all nine justices agreed that the Clean Water Act does not apply to this particular lot, they split 5-4 on how to read the act, with Kavanaugh joining the three liberal justices in dissent. (Technically, both Kavanaugh’s opinion and Justice Elena Kagan’s separate opinion, which also disagrees with Alito, are opinions “concurring in the judgment,” because all nine justices agreed that the property owners should prevail. But both of those opinions dissent from Alito’s reading of the law.)

The Clean Water Act is not the most precisely drafted law, and its text offers few hints as to what the “waters of the United States” might be. But it does include one pretty clear indication of how the law treats wetlands. One provision of the Clean Water Act applies the law to “wetlands adjacent” to waterways covered by the act.

As Justice Kagan writes in her opinion, “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”

But Alito’s opinion does not apply the act to all wetlands that are “adjacent” to nearby waterways. Under Alito’s approach, only wetlands that have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands” are subject to the law’s restrictions on pollution.

So what does this decision mean for America’s water system?

Near the end of his opinion dissenting from Alito’s approach, Kavanaugh lays out several ways that “the Court’s rewriting of ‘adjacent’ to mean ‘adjoining’ will matter a great deal in the real world.” He warns that this decision “may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.”

As Kavanaugh writes, “the Mississippi River features an extensive levee system to prevent flooding.” But, because these levees create a physical barrier, “the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”

Similarly, Kavanaugh warns that “federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries.”

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