In May, the Supreme Court told the Environmental Protection Agency it couldn’t regulate lands distant from navigable waters as “waters of the United States” under the Clean Water Act. Given recent history, this was a momentous decision. Ryan M. Yonk and Ethan Yang, writing for Law & Liberty, have analyzed the subject more deeply.
Until now, the authors write, regulators “were enabled by and armed with an abstract, open-ended doctrine created by one former Supreme Court Justice. Thankfully, the Supreme Court corrected this sweeping overreach with its ruling last month in Sackett v. EPA. ”
One Supreme Court justice? That was Justice Kennedy.
“The issues argued in Sackett v. EPA were actually rooted in an earlier case. Rapanos v. United States was ruled in 2006, and Supreme Court Justice Kennedy’s singular opinion in the 4-1-4 split decision established a novel approach to interpreting the law. That approach relied neither on the legislative history nor the text of the law, and it created nearly two decades of controversy over the almost limitless power it granted to the federal government. The case centered around the actions of George Rapanos, who was developing property at least 11 miles from federally regulated waters, and the Environmental Protection Agency’s attempt to regulate and ultimately prevent the development under the CWA.”
The problem was that the Kennedy opinion allowed waters remote from “U.S. waters” to be treated as U.S. waters under the law if there was a “signifcant nexus” between them.
“Lo and behold, as interpreted and implemented by the EPA, a significant nexus came to mean just about anything. Numerous near-farcical applications resulted from this expansive approach.”
The worst may be over now. I recommend that you read more from the article by Yonk and Yang.
Image of a wetland from Pixabay.