The U.S. Supreme Court’s recent decision in Sackett v. Environmental Protection Agency continues its trend of limiting executive agencies, such as EPA, from expanding their authority when faced with statutory ambiguity — ambiguity such agencies have used to extend their reach to places and activities over which Congress has not given them express jurisdiction.
Sackett addresses the Clean Water Act’s (“CWA”) vague definition of “waters of the United States,” and the EPA’s use of that ambiguity to extend its regulatory reach. While the term “navigable waters” had a well-established meaning when Congress enacted the CWA in 1972, the term “Waters of the United States” created decades of confusion. Over time, the EPA and the Army Corps of Engineers (“the Agencies”) expanded the term’s definition to cover smaller and more remote bodies of water. In Sackett, the Agencies cited the improvements Sacketts made to their Idaho property on the theory that the property constituted wetlands “adjacent” to the waters of the United States — even though the property was not near any navigable body of water — because the Agencies had determined that a “significant nexus” existed between the property (when combined with other “similarly situated” lands in the area) and “waters of the United States.”
The most important aspect of the Sackett decision may be that the Supreme Court unanimously rejected the Agencies’ CWA interpretation. Not a single justice dissented from the court’s judgment striking down the Agencies’ expansive “significant nexus” rule as it applied to the Sacketts’ property. The only conflict between the justices concerned whether the CWA’s applicability to “adjacent” wetlands meant that those wetlands had to have a “continuous surface connection” to “waters of the United States” (defined as encompassing “only those relatively permanent, standing or continuously flowing bodies of water generally described as ‘streams, oceans, rivers, and lakes’”), as the majority held, or if such wetlands could be, as the primary concurrence argued, separated from the “waters” by a man-made dike or barrier, natural river berm, beach dune, etc.
The court’s unanimity is so important because neither the majority opinion, nor any of the concurrences, gave the Agencies’ interpretation of their authority under the CWA any deference. At most, the primary concurrence — written by Justice Kavanaugh — argued that executive agencies under multiple administrations of differing political stripes had always interpreted the word “adjacent” as meaning “nearby” rather than “adjoining.”
This non-deferential approach is very different from the one taken by the court in previous cases addressing this issue, including Rapanos v. United States, 547 U. S. 715 (2006) and United States v. Riverside Bayview Homes Inc., 474 U. S. 121 (1985). In Riverside Bayview, the court — despite some expressed concerns — deferred to the Army Corps of Engineers’ interpretation of its authority under the CWA. In Rapanos, the four dissenting justices would have deferred to the government’s determination that the wetlands at issue were covered under the CWA.
The refusal of any Sackett justice to make a deference argument — even Justice Kagan based her concurrence (joined by Justices Sotomayor and Jackson) on statutory textual analysis — could have huge import for future cases regarding executive agencies’ authority. The court has already granted certiorari to Loper Bright Enterprises v. Raimondo, a case challenging the policy of judicial deference to administrative agencies’ interpretation of ambiguous laws under the 1984 case of Chevron v. Natural Resources Defense Council. Sackett may indicate, if not a death knell, then a radical reworking of Chevron deference.
For now, though, the court has dramatically reined in the Agencies’ CWA jurisdiction, which now extends only to wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that the wetlands are “indistinguishable” from those waters.