Jurisdiction without end?

Last Monday, the Supreme Court heard oral arguments in a case known as Sackett v. EPA. The case pits a retired couple from Priest Lake, Idaho, against the Environmental Protection Agency. Oral argument indicated that several justices were concerned by the EPA’s interpretation of the Clean Water Act and might be poised to cut back on the agency’s assertion of authority over any wetland that, in combination with other wetlands in the area, might affect a body of water. That is a very expansive claim to authority.

In 2004, Mark and Chantelle Sackett bought a two-thirds acre lot near Priest Lake, Idaho, planning to build their dream home. When they began construction, however, the Environmental Protection Agency told them to stop building and to begin expensive wetlands remediation because their property contained a wetland covered by the Clean Water Act. What’s more, the EPA told the Sacketts they couldn’t challenge the EPA’s determination and could also be fined up to $75,000 a day if they did not immediately start remediation.

In a prior version of the lawsuit, a unanimous Supreme Court held that the Sacketts were entitled to challenge the EPA’s conclusion that their lot contained wetlands within the meaning of the Clean Water Act. As Justice Alito wrote in his concurrence, the EPA’s position “put the property rights of ordinary Americans entirely at the mercy of” the EPA.

The current version of the case asks whether the EPA has jurisdiction over the Sacketts lot at all. The Clean Water Act of 1972 prohibits depositing any pollutant, including dirt and rock from building or farming activities, into a “navigable water”—which it defines as the “waters of the United States”—without a permit granted by the EPA. And permits don’t come cheap. An application can take tens or even hundreds of thousands of dollars.

The EPA has long taken an aggressive view of its jurisdictional authority under the Clean Water Act, regularly claiming the ability to regulate upwards of 300 million acres of swampy land. And under the Obama Administration, the EPA made even more expansive claims, arguing that it had jurisdiction over any wetland that, in combination with other wetlands in the same watershed, might represent a “significant nexus” to a navigable water. That test granted the EPA authority over as much as 95% of the land mass in Oklahoma.

The EPA’s determination that the Sackett’s land contains a “water of the United States” takes some explaining. Priest Lake is a navigable water, which connects to a non-navigable creek, which connects to a non-navigable, man-made ditch, which connects to wetlands. These wetlands are separated from the Sacketts’ lot by a thirty-foot-wide paved road. Yet the EPA claims that the alleged wetlands located on the Sackett’s property are “similarly situated” to other wetlands, and when all these wetlands are lumped together, bear a “significant nexus” to Priest Lake by significantly affecting its “chemical, physical, and biological integrity.”

If this all seems a bit far-fetched, several justices expressed similar concerns. Justices Thomas and Gorsuch worried that the EPA test was vague and that ordinary landowners would have no idea whether their land was covered by the Clean Water Act. Justice Kavanaugh noted it was ordinarily Congress’ job to define when federal law replied. And Justice Alito worried that the government’s proposed limitations on its own jurisdiction weren’t really limitations at all.

Justice Thomas noted that he grew up in the low country of Georgia while Justice Barrett explained that she grew up in New Orleans, places where water exists immediately below the surface. Both Justices worried that the EPA’s argument would require every homeowner to get a permit from the EPA.

On the other hand, several justices were skeptical of the Sackett’s argument that a surface water connection between a navigable water like Priest Lake and a wetland must exist in order for EPA jurisdiction to apply. Justice Jackson noted that the EPA had sought to preserve the integrity of the nation’s waters.

These competing concerns led Justice Kagan to repeatedly ask for a middle-ground rule.

The takeaway from the first day of oral argument seems to be that a majority of the Supreme Court is concerned by the EPA’s assertion of jurisdiction over any wetland that, in combination with other wetlands in the watershed, might affect a navigable water. The larger issue in play has to do with the power of administrative agencies to establish law in the first place. How much of jurisdiction the Court will curtail and what test for “waters of the United States” the Court will eventually adopt remains to be seen. This case should be of interest to every American, landowner or not.