Contaminating the Clean Water Act

Sackett v. Environmental Protection Agency

Heron photo: Anton Solokin. Polluted water photo: Kaentian Street
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The overwhelmingly conservative Supreme Court once again proved itself to be an enemy of the public with its 5–4 decision in the May 2023 case Sackett v. Environmental Protection Agency (EPA). As people all over the world suffer from climate disruption and lack of access to water, this ruling doubles down on willfully ignoring reality. The decision’s inevitable exploitation by profiteers will be devastating.

How we got here. The dispute in the case arose in 2007 when the Sackett family began backfilling a lot they owned in Idaho. The EPA determined the lot contained wetlands protected by the 1972 Clean Water Act (CWA), and halted their development. The Supreme Court ruling centered on the definition of “waters of the United States” as described in the CWA.

The court’s conclusion was baffling. Now, for a wetland to be protected by the Clean Water Act, it must have “a continuous surface connection to bodies of water that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.” The act describes its coverage of wetlands relative to their “adjacency” to waters of the United States, but SCOTUS’ interpretation conflates “adjacent” with “adjoining,” effectively revising the CWA to suit its objective of undercutting federal regulation. This semantic change may not seem key at a glance, but the effects are extremely broad. All studies from reputable academic sources estimate that approximately 50% of the 118 million acres of previously federally protected U.S. wetlands are now excluded.

These are left in the hands of the states. Many lack robust environmental protections precisely because they rely on the CWA as written.

Eschewing the science. Most upsetting, in service of its unsavory objectives, the court fails to account for hydrology, casting aside the scientific importance of wetlands to the wider ecosystems humans inhabit. Many wetlands have lost federal protection due to being underground. This “groundwater” may not share a “continuous surface connection” with nearby bodies of water, but that doesn’t mean they don’t interact. Groundwater routinely allows movement of fresh water between external bodies, making SCOTUS’ conclusion about what deserves protection especially disheartening because it’s detached from reason.

The effects of this ruling are potentially disastrous. Short-sighted profit-driven wetlands destruction is not only a threat to plant and animal life. Fresh water is increasingly precious, and it’s likely that a lot of it will be contaminated because of this case.

Wetlands are also vital for protecting low-lying areas from flooding. The water has to go somewhere, and if wetlands are blocked, it will start to find its way into towns and cities.

Corporate interests win out. Before this ruling, anyone tampering with wetlands would have to seek a permit from the EPA, as well as adhere to state guidelines. It has been commonly understood since the inception of the CWA that all wetlands (swamps, marshes, bogs, etc.) fall under the waters of the U.S. umbrella, so what reason could the conservative Supreme Court majority have for undercutting such an important piece of legislation?

The answer lies with the true allegiance of these individuals. It’s not to the people of the United States who rely on wetlands for drinking water, but to corporations and big business, who sooner or later ravage the land seeking further wealth. Look no further than Harlan Crow, Clarence Thomas’ great benefactor, whose real estate connections mean he now stands to profit immensely from property development on previously protected wetlands.

This move aligns with SCOTUS’ other rulings on environmental protection. In 2022, in West Virginia v. EPA, it decided that the EPA didn’t have the power under the Clean Air Act to aggressively fight climate change. Congress could counter some of the damage with new legislation. But in its current state, that is highly unlikely. Now it falls to the people to pressure states to act on this critical issue. We are a part of nature, and defending it means defending humanity. There is no time to lose.

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