Legal Docket: A new voice on the court

JENNY ROUGH, HOST: It’s Monday, October 10th, and we’re glad you’ve joined us for The World and Everything In It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Hey there, Jenny.

ROUGH: Hi!

EICHER: Well, Mary Reichard is, as you can tell, away today, so it made sense for Jenny to jump into the cohost chair, this being a Monday because it’s Legal Docket.

Today we’ll kick off coverage of all the oral arguments for this new term of the U.S. Supreme Court.

So Jenny, the first Monday in October was the beginning of a new term and it began with a new face, a new voice on the high court. Justice Ketanji Brown Jackson.

ROUGH: Right. She becomes the 116th justice in the history of the court. That’s not a lot of people, so that’s pretty exclusive company. And replaces a really thoughtful justice that, even in disagreement, Mary and I really respect, Justice Stephen Breyer. He retired at the end of the last term, back in June.

EICHER: I know working next to Mary for our Legal Dockets during the years, she’d frequently have a Breyer-ism, something especially clever or witty. I always thought if Jerry Seinfeld went to Harvard law and graduated magna cum laude, well, you might have another Stephen Breyer!

ROUGH: Definitely. We’re going to miss his professor-like demeanor at oral argument. That and his hypotheticals. He often tossed out these creative what if scenarios that really kept lawyers on their toes.

But at the same time, we’re looking forward to learning more about Justice Jackson’s style. You’ll hear today that she’s already spicing things up!

EICHER: Speaking of, let’s move on to oral arguments. We’ll cover two cases today. To start, a case that centers on the Clean Water Act. That’s a federal statute designed to eliminate pollution in the nation’s waters. The question here: What legal test should the court apply to determine if wetlands fall within the Clean Water Act?

So talk about that...

ROUGH: Right. Let me begin with definitions. I define wetland for our purposes like this: Think of it as a meeting place, where land and water come together and interconnect. A haven for wildlife. A place where, out of dead trees and brush, new life springs forth. In fact, I’ve heard experts call wetlands the cradle of life.

So that’s one reasons wetlands have been endlessly tied up in litigation over the years, especially when people want to fill them up and build on them. To complicate matters, the court keeps changing its mind about which wetlands fall under the Clean Water Act, and that’s the statute at issue here.

EICHER: Let’s turn to the facts in this case. In 2007, Michael and Chantell Sackett started construction on a two-story family home in a residential neighborhood in Idaho near Priest Lake. Now, Priest Lake isn’t on their property. The Sacketts’ property doesn’t have any surface water on it. No rivers or streams or anything like that.

That means, of course, that the Sacketts’ land doesn’t have a direct surface water connection to Priest Lake. But below the surface, that’s where it likely does connect.

ROUGH: And that’s the beginning of the controversy.

Enter the EPA. That’s the Environmental Protection Agency and EPA claims the Sacketts’ property sits on top of wetlands.

Across the road from the Sacketts’ property, lies a man-made ditch that collects water from nearby wetlands. The ditch feeds into a creek. The creek flows into Priest Lake.

And the EPA ordered the Sacketts to stop construction on their home.

Now here’s where EPA’s authority comes from.

The Clean Water Act makes it against the law to discharge pollutants into navigable waters without a permit.

Think about that term navigable, you may think of waters that you can navigate. You can take a boat on it, in other words. Presumably, Priest Lake would be navigable waters, but wetlands wouldn’t be.

EICHER: But that’s not how the Supreme Court has interpreted the term. Back in 2006, the court faced a similar question: Whether the Clean Water Act extended to wetlands that were indirectly connected to navigable waters by a man-made ditch.

The court’s answer was mucky and murky.

It was a three-way split: 4 to 1 to 4, a plurality opinion, no majority. Justice Antonin Scalia wrote for the four who adopted a test saying the Clean Water Act extended only to wetlands with a continuous surface connection to navigable waters.

Justice Anthony Kennedy was on his own. He wrote a concurrence opinion and adopted a broader test. He said the Clean Water Act covers wetlands that have a significant nexus to navigable waters.

Confused yet? Well, you’re in good company. Those two different tests have caused confusion in lower courts.

ROUGH: So in this case, the EPA relies on Kennedy’s concurrence to argue the wetlands under the Sacketts’ land are adjacent to navigable waters. Thus they are covered by the Clean Water Act. The Sacketts disagree. They argue Scalia’s test should apply—the line-drawing test that requires a continuous surface flow. But the Sacketts lost in lower court.

Now before the Supreme Court, let’s listen to their lawyer Damian Schiff.

SACKETTS: It's now going on 16 years since Petitioners Mike and Chantell Sackett began construction of a house on a vacant lot in a largely built-out subdivision. Yet, their home-building plans remain on hold to this day because EPA remains steadfast in its view that their property contains navigable waters, subject to regulation under the Clean Water Act. But under no plausible interpretation of that term does the agency have such authority.

Schiff admitted the Clean Water Act doesn’t categorically exclude all wetlands. But he argued there needs to be that continuous line on the surface. Wade through a cattail marsh to swim into a lake kind of line.

SACKETTS: It's an easy-to-administer test. Ordinary citizens can use their own eyes to reliably determine whether...

Schiff went on to argue that even under the EPA’s test, it’s wrong to claim the wetlands were adjacent to Priest Lake. The word adjacent must be interpreted to mean physically touching. But Chief Justice John Roberts didn’t buy Schiff’s argument.

SACKETTS: I'm not sure that's right. You would readily say that a train station is adjacent to the tracks even though it's not touching the tracks?

But Schiff argued that example didn’t entail topographical features. It’s different with land and nature.

Justice Jackson jumped right in. She made a distinction between two types of wetlands: one, physically touching the lake or, two, neighboring but not touching and she saw no reason why those two should be treated differently. Especially given the aim of the Clean Water Act.

SACKETTS: You say the question is which wetlands are covered, which I agree with, but I guess my question is, why would Congress draw the coverage line between abutting wetlands and neighboring wetlands when the objective of the statute is to ensure the chemical, physical, and biological integrity of the nation's waters? So are you saying that neighboring wetlands can't impact the quality of navigable waters?

Schiff argued Congress had to balance concerns: water quality and preserving state rights to regulate property.

Justice Neil Gorsuch asked why the line drawing test was necessary. Why the need to see a continuous line of surface flow. Schiff indicated without that test, a property owner wouldn’t have a reasonable way to know their land is considered a water of the United States.

SACKETTS: If something cannot be reasonably classified as a water then the answer is simply Congress hasn't authorized it. And that really has to be why mere geographic closeness can't justify the contratextual conclusion that a two-third-of-an-acre residential lot with a sewer hookup with an address and a mailbox is somehow considered a water of the United States.

Gorsuch agreed that’s the question. He wanted to know the consequences.

SACKETTS: What are the penalties associated with this? What was threatened to your clients and what does one face in these circumstances?

Fines. Big ones. Significant money.

The statute also allows for criminal penalties, too. But those weren’t threatened in this case.

Now, the EPA’s side of the story. Brian Fletcher is the attorney. Justice Gorsuch asked him about all of that.

GORSUCH: I am sympathetic to the idea of how does a landowner know under the standard whether their land is covered.

FLETCHER: So I think we are talking about adjacency, and that may not be something that gives you bright-line rules, but it rules out things that are many miles away.

ROBERTS: Does it? Are you sure the EPA would take that view?

FLETCHER: I’ve asked. The agencies have told me they do not draw bright-line rules. They do not think 300 feet is unreasonable for adjacency.

GORSUCH: So how about 3,000 feet? Could be?

FLETCHER: I don't know the answer to that, Justice Gorsuch.

GORSUCH: Could it be three miles?

FLETCHER: I don't think it could be...

GORSUCH: Could it be two miles?

FLETCHER: That, again, when we start to talk about miles, that sounds too far to be adjacent, to reasonably be proximate to.

GORSUCH: One mile?

FLETCHER: Again, I see where this is headed. (Laughter.)

GORSUCH: So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?

EPA lawyer Fletcher said homeowners can ask the government for a determination, free of charge. And he reminded the justices that the Clean Water Act doesn’t prohibit anyone from building a house. It just requires them to get a permit.

SACKETTS: And if the Sacketts' wetlands would not significantly affect or degrade Priest Lake because of their location or their size or anything else, that's something that's appropriately taken into account in the permitting process. This is just about which wetlands are going to have some examination to make sure that that degradation does not occur.

The parties to this lawsuit have been fighting for a decade and a half. And this is the second time the case has been before the Supreme Court. Justice Brett Kavanaugh stressed the significance.

SACKETTS: This case is going to be important for wetlands throughout the country, and we have to get it right.

The last case today arises out of Alabama.

The legal question centers on the Voting Rights Act. How do you slice and dice different voting districts?

In 2021, the state enacted a map of its seven congressional districts. Black voters in Alabama constitute more than a quarter of the voting-age population. But only one of the seven districts has a majority of black voters. That would be 14 percent of the districts for 27 percent of the voting population.

So voters sued, arguing that the state violated the Voting Rights Act, specifically its ban on racial discrimination. Bottom line, that Alabama should have a second majority-minority district.

Here’s Justice Amy Coney Barrett recapping both sides.

BARRETT: Here, you know, there was testimony below that it was impossible to get to the two majority-minority districts if you didn't take race into account. There's the quote from the plaintiffs' expert saying that you can't get there on accident, which is why it's important to do it on purpose. And I understood you to be saying that you are being asked, all states are being asked to navigate the rock and the hard place of the Fourteenth Amendment and the Voting Rights Act and that if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Do the maps need to be race-neutral? If Alabama does take race into account, does that create an equal protection problem? That’s what the court will have to navigate navigable waters or no.

That’s this week’s Legal Docket.

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