On May 25, the Supreme Court released a major ruling that significantly curtails the Environmental Protection Agency’s ability to regulate the nation’s wetlands under the Clean Water Act. The opinion was handed down while I was waiting for a train, so a very nice lady standing next to me had the misfortune of hearing my first-take rant as I was reading through Justice Samuel Alito’s majority opinion. When I finally stopped talking long enough to shove a chicken nugget into my face hole, she said, “The only war we’re capable of winning is the one against the environment.”
She’s right. It’s a war being waged by the fossil fuel industry, supported by companies addicted to the profits provided by cheap plastics and given a moral pass by various right-wing Bible thumpers who believe God (instead of gravity) created the earth and gave it to humans. Now, over the objection of most of the American people and various acts of Congress, the Republican-controlled Supreme Court has appointed itself as the shock troops in this war, as the vanguard who take the hopes and dreams of polluters and fashion them into laws.
The court knows exactly where to attack. Last year, in West Virginia v. EPA, it eviscerated the Clean Air Act. Now, with Sackett v. EPA, the court has come for water. The Clean Air Act and the Clean Water Act are the two foundational laws that the EPA was created to administer. The conservative justices won’t overturn these wildly popular acts of Congress outright, so instead they’ve decided to neuter the EPA’s ability to enforce them. The conservative approach to environmental protection is similar to that of locusts: consume every resource and die before having to deal with the consequences of their own destruction.
Sackett v. EPA involves a complicated application of the Clean Water Act. Michael and Chantell Sackett bought a lot near Priest Lake in Idaho, and, well, it was wet. They wanted to fill it with dirt so they could build a home. The EPA prevented its construction, arguing that the Sacketts’ property feeds into a tributary that feeds into a creek that feeds into Priest Lake. It’s long been a knotty legal issue to determine the extent of the EPA’s authority over these kinds of situations. The Clean Water Act grants the EPA the authority to regulate the “navigable waters” of the United States, but it defines “navigable waters” as the “waters of the United States,” which doesn’t really help clarify the issue. (Thanks, Congress.)
Courts have long held that the EPA has the authority to regulate not just large bodies of water like lakes and rivers, but also aquatic ecosystems “adjacent” to those lakes and rivers, which include many of the nation’s extensive wetlands. This makes sense, because if you know only two things about water, those should be that it makes things wet—and it flows. If you dump dangerous pollutants into your swamp, it won’t be long before they end up in my drinking water. Such is the nature of liquids.
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Unfortunately, it would appear that Justice Alito was sick the day they taught fluid dynamics in middle school, and he never went back and did the reading. Writing for the majority in Sackett, Alito claims to be unable to distinguish between a wetland or watershed that drains into a lake and a swimming pool or puddle. I’m not exaggerating; the guy literally counters the EPA’s experts with a hypothetical about a puddle:
The EPA argues that “waters” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands.’”… But that reading proves too much. Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as “waters.”
Alito’s argument is as deep as one of his puddles. It’s true that “waters” is a broad term, but acting like there’s no meaningful distinction between a wetland and a puddle shows that Alito is either being intellectually dishonest or is in desperate need of an intervention from Bill Nye.
To resolve this self-imposed ignorance, Alito turns to another word game: parsing the definition of “adjacent.” According to Alito, “adjacent” in the context of the Clean Water Act must mean that the wetland shares a “continuous surface connection” with a “navigable” body of water. But Alito’s definition is entirely made up. It’s made up according to the Supreme Court’s own precedents, which, as I said, have previously granted the EPA authority to regulate wetlands that drain into major bodies of water. And it’s made up in terms of the common definition of the word “adjacent,” which Justice Elena Kagan points out in her opinion. She writes: “In ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby.”
This brings us back to the actual case at the heart of Sackett. As I said, the facts of the Sacketts’ particular lot are complicated. Indeed, all nine justices ruled against the EPA and in favor of the Sacketts’ plan to fill their lot with dirt. But the justices split 5–4 on how to interpret the Clean Water Act, with four refusing to go along with Alito’s fanciful redefinition. Kagan wrote separately, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, while alleged attempted rapist Brett Kavanaugh also wrote a separate opinion calling Alito out for his lack of understanding of how water filters from a wetland into a larger body of water. I make fun of Kavanaugh and his intelligence a lot in this column, so I must give him credit for understanding how this all works better than his conservative brethren. I guess you can learn a lot from watching how beer spills off a ping-pong table.
This is one of those cases I’m going to have a really hard time explaining to my grandkids when they ask me why the only safe drinking product is Gatorade and all the plants are dying. According to the EPA, Alito’s ruling puts over 50 percent of the nation’s wetlands at risk from polluters, who will now claim that the water they’re dumping into is not covered by the Clean Water Act. The United States is in the midst of a freshwater crisis, with most of what we have left residing underground. How are we to explain to future generations that in 2023, given all we know about our precarious situation, we opened the floodgates to additional water pollution because an old man and four of his ideological friends decided they couldn’t tell the difference between groundwater and a swimming pool?
I simply cannot emphasize enough that if you are an environmental activist—or merely a conscious human—you must be loudly in favor of court reform and expansion. All of the protests and legislative campaigns and individual carbon-footprint controls in the world will mean nothing if these unelected conservative justices get to set climate policy for the next 30 years. They are in a war against the environment, and they are winning. Our children will reap the bitter harvest of what the Supreme Court sows now, and when they ask us why we let them do this, they will be unimpressed when we say, “Nine just felt like the right number of justices.”
