Fears US supreme court could radically reshape clean water rules

Conservative-majority court could soon decide on scope of Clean Water Act, dramatically affecting laws and wetlands countrywide

A 15-year legal tussle over a tiny plot of land near a lake in northern Idaho could culminate in the US supreme court drastically reshaping clean water laws across the country, with a decision by the conservative-dominated court now looming.

The case is the latest and perhaps most significant of the repeated challenges to the scope of the Clean Water Act, which has been the subject of 50 years of fraught argument over the federal government’s ability to prevent pollution seeping into America’s waterways.

The supreme court takes up barely 1% of the cases presented to it but in October decided to ponder the crusade by a married couple, Michael and Chantell Sackett, to challenge what they view as an egregious government attack on their property rights.

In 2004, the Sacketts purchased a roughly half-acre patch of land beside Priest Lake, a crystalline body of water popular with boaters nestled in the scenic wilderness of the Idaho panhandle. The couple set about constructing a three-bedroom home on the plot, but as they filled the site with gravel they were told by the Environmental Protection Agency (EPA) they were erasing a federally-protected wetland and required a permit.

Since 2007, three presidential administrations ago, the plot has remained unoccupied as the Sacketts, or rather the libertarian Pacific Legal Foundation that has taken up the battle on their behalf, fought the EPA’s finding through the courts.

Pat Parenteau, environmental law expert at the Vermont Law School, told the Guardian he was anxious about the supreme court’s involvement. “The court seem[s] eager to upset the norm, they are power mad right now. They (the conservatives) are in the solid majority and feel they can do whatever they want to do, even if that impacts water quality for the whole country.

“It’s one tiny wetland in northern Idaho, for crying out loud. What makes the court think it’s in a position to draw a bright line in a decision that impacts the length and breadth of the US, with all of its climate and topographical differences?” said Parenteau.

The Sacketts are no strangers to the highest court in the land. In 2012, the supreme court agreed with the couple’s argument that they could challenge the tens of thousands of dollars in fines levied by the EPA. Three years later, in an unrelated case, Michael Sackett was sentenced to a year in prison following a sting operation in which he agreed to pay for sex with a 12-year-old girl.

EPA’s “bureaucrats used a made-up definition of ‘navigable waters’ to deny us the right to use our own property – a right that’s protected in the constitution,” the Sacketts said in a joint statement.

“We’ve spent 15 years of our lives fighting the illegal land grab under the Clean Water Act. Our property is still vacant and our rights are still violated. We hope that the supreme court will hear our case and settle the navigable waters question once and for all,” they added.

“It’s high time to finish the job we started – to end our personal nightmare and ensure that no other Americans suffer the same predatory government abuse.”

The Pacific Legal Foundation, which has been backed by corporate interests including entities linked to the Koch brothers, has said the case highlights “abuse by overzealous federal regulators”. But the bigger prize is the potential rollback of the EPA’s use of the Clean Water Act, the 1972 legislation that has endured a tumultuous history in terms of its interpretation.

The law states the federal government is to regulate “navigable” waters, which is broadly understood to include large bays, rivers and lakes such as Lake Priest. It also stipulates federal protection for wetlands “adjacent” to major bodies of water, which the EPA insists includes the wetlands situated just a few hundred feet from Lake Priest.

But arguments have raged over whether more “ephemeral” streams are included, or the extent of protection for water flowing into larger bodies of water, given the interconnectedness of water pollution. The Sacketts claim that a road and housing development across the wetlands has severed its “adjacent” status to the lake.

Barack Obama’s administration broadened the definition of these protections to include a vast swathe of American waters, before Donald Trump subsequently gutted these regulations. In December, the EPA released a new rule that sits somewhat between Obama and Trump, in what Michael Regan, administrator of the agency, said should be a “durable definition” of what constitutes ‘waters of the United States.’

The supreme court, meanwhile, previously had a split 2006 ruling in which justices could not agree on the vague definitions of the act. If the current court sides with the more narrow interpretations of protections, as was advocated by the late justice Antonin Scalia, the Sacketts may finally be able to build their house.

This would have sweeping impacts but would unlikely be the final chapter in the saga of America’s clean water rules. “The Sacketts may well get a win, but it all depends on the level of that victory, whether it’s a landmark sweeping decision or a more narrow question of jurisdiction,” said Parenteau.

“If the Pacific Legal Foundation gets its way then half of the wetlands in the US lose protection and that does serious damage. This court is going to try to write an opinion overruling all the expertise and with all the variance in water in different parts of the country – good luck to them on that.

“But whatever the opinion says, it’s going to be challenged until Congress adds more clarity because we can’t come to an agreement nationally on this. It’s endless, it just goes on and on.”


Oliver Milman

The GuardianTramp

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