The Supreme Court took another step this Thursday in its crusade to limit the power of the US environmental agency (EPA). The high court agreed with the Sacketts in their almost 15-year fight to build a house about 100 meters from Priest Lake in Idaho. He was prevented from doing so by the EPA, whose technicians considered that his land probably contained wetlands and, therefore, was subject to the Clean Water Act of 1972, which prevents the dumping of pollutants, sand, cement and other materials essential for construction. The sentence dictates that this rule, open to interpretation, only protects wetlands that have a “continuous connection on the surface.” The ruling comes a year after the Supreme Court limited the EPA’s field of action to combat pollution, within the framework of the Clean Air Act.
The nine judges have agreed on the merits of the ruling: the EPA was not the one to decide whether or not the Sacketts could build on their property. But that unanimity broke down when it came to sharing the arguments of the majority opinion, which includes five magistrates and is signed by the conservative Samuel Alito.
unclear
At the beginning of that opinion, Alito writes that the Clean Water rule was “a great success,” and that, before its approval, “rivers, lakes, and streams were severely polluted.” He also considers that it was born defective by being unclear in the correct interpretation of the scope of the term “waters of the United States.” Alito recalls that the Supreme Court tried to unify criteria on three previous occasions, the last one 17 years ago. “The scope of the Clean Water Act is notoriously unclear,” he says at another point in his argument. “Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as covered wetlands by law, and by the federal government, if property owners start building a house on a farm that the agency believes has the required moisture, property owners are at the mercy of the agency.”
That was what, as the Supreme Court has ruled, happened to the Sacketts. On the other side of the road that passes next to his farm there is a wetland that connects with a drainage ditch that leads to a non-navigable stream that flows into the lake. The EPA considered that this made it a protected wetland and ordered them to remove the construction fill material under threat of a fine. The case became entangled in the courts, it reached the Supreme Court for the first time due to jurisdiction issues in 2012, then it stalled. More than 15 years later, the marriage has gotten away with it.
Conservative Justice Brett M. Kavanaugh, joined the court’s three liberal justices in a concurring opinion, believes the decision hurts the EPA’s ability to combat pollution. In her text, Elena Kagan goes even further, accusing her classmates of trying to fix Congress and “bailing out property owners from their overly ambitious pollution control program.”
“This is a catastrophic decision,” explains Jim Murphy, director of legal advocacy for the National Wildlife Federation, “because it removes protection from millions of acres of land that remain federally unprotected. It will have effects on the lives of people, communities and animals”. The problem, according to Murphy, is that “the vast majority of wetlands do not have a distinguishable connection on the surface” and, therefore, are now left unprotected. “75% of the American population is strongly in favor of protecting clean water. We hope that Congress will adopt a law in this regard”, considers the activist, who fears that the Supreme Court’s decision means the return of some of the problems prior to the 1972 law. Kagan herself recalls in her text perhaps the crisis most famously, “when the fire caught [en 1969] in Ohio’s Cuyahoga River, fed by oil and other industrial wastes” that polluted its waters. Murphy, for his part, clarifies that Lake Erie “was practically dead” before the 1972 law.
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