MY OWN PRIVATE IDAHO WETLAND: WHAT WILL THE COURT DO WITH THE SACKETT CASE

The Supreme Court has agreed to review the decision of the Ninth Circuit in Sackett v. Environmental Protection Agency. As framed by the Court, the Question Presented is: 'Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act.' Oral argument is set for the October 2022 term. The grant of review is surprising for many reasons. No constitutional issue is presented. There is no conflict among the courts of appeal requiring intervention by the Court. The Ninth Circuit, like every other circuit that has considered the question, looked to the 'significant nexus' test under Justice Kennedy's concurring opinion in the famously fractured decision in Rapanos v. United States. Petitioners argue that this was an error and that the Ninth Circuit should have applied the test articulated by the late Justice Scalia in the plurality opinion in Rapanos, requiring that there be a 'continuous surface connection' between a wetland and 'a relatively permanent body of water.' However, none of the circuit courts have ruled that the 'Scalia test'is controlling. Rather they have viewed the Scalia test as providing an additional basis for CWA jurisdiction in the event the Kennedy significant nexus test was not met. Moreover, the responsible agencies, EPA and the Corps of Engineers, are presently engaged in a two-step rulemaking process to develop a new definition of 'Waters of the United States.' Normally, the Court would await the outcome of a rulemaking before intervening and issuing an opinion on the scope of an agency's authority before the agency has adopted a final rule, based on a fully developed administrative record. Finally, petitioners are not facing any enforcement action and cannot point to any imminent threat of harm. EPA withdrew the compliance order that gave rise to the original controversy and has represented that it has no intention of taking any enforcement action. The Ninth Circuit ruled that the case was not moot because EPA might change its mind. What an agency might do in the future hardly meets the strict standards for Article III standing, and such a ruling raises questions about whether the case is even justiciable at this stage. Now that the Court has taken jurisdiction and is unlikely to dismiss the petition as improvidently granted, the question is: what will it do? It is safe to assume that it will reverse the Ninth Circuit and reject the significant nexus test for determining what constitutes a water of the United States. How much further it goes in limiting the geographic scope of the CWA is an open question. Conventional wisdom suggests the conservative majority will adopt Justice Scalia's test and thereby significantly shrink the scope of the Act. Other possibilities include a narrow, fact-based decision that sends the case back to the lower courts with instructions to reconsider the question based on several factors similar to what the Court did in the County of Maui v. Hawai'i Wildlife Fund case in 2020. Alternatively, should the Court adopt the Scalia test as the only permissible interpretation of the statute, what would be the consequences for water quality across the country? Some argue that the states will simply fill the gap. But the evidence is to the contrary. Over half of the states have laws on the books that prohibit regulations that are stricter than what federal law requires. There is no reason to think these states, many of whom have filed amicus briefs in support of petitioners' position that federal jurisdiction should be radically reduced, will suddenly have a change of heart and move quickly to change their laws and make the substantial investments required to replace the regulatory framework that EPA and the Corps have administered over the past 50 years. To the contrary, the loss of federal protection for as much as a third of the nation's headwater streams and over half of the remaining wetlands will mean little or no regulatory protection for these vital resources and make it virtually impossible to achieve the CWA's objective to 'restore and maintain the chemical, physical and biological integrity of the nations' waters.'
I. Background: How Did It Come to This? 375 II. What Happens Now? 379 III. Best Case: A Narrow, Fact-Based Decision 380 IV. Worst Case: Adoption of the Rapanos Plurality [...]