How an Upcoming Case Could Change the WOTUS Rule
The 2006 Rapanos v. United States case split the Supreme Court Justices on just how far the reach of the federal government extended under the Clean Water Act.
“Four Justices said the existing rules were fine. Four Justices adopted a much more restrictive definition of federal authority, one that had not even been proposed by any of the parties. And then the Justice in the Middle Justice Kennedy said what we really should do is something completely different and focus on how is this going to affect larger bodies of water if wetlands are filled.”
Robert Percival, Professor and Director of the University of Maryland’s Environmental Law Program, says the litigation that followed only caused more confusion that continued into the Obama Administration.
“During the Obama Administration, EPA took up Chief Justice Roberts suggestion they should issue a clarifying rule, and they issued the waters of the United States rule. After conducting elaborate rulemaking procedures and consulting all the scientific studies to show you just how confused this was, there then was an incredible legal battle over in which court can you challenge the Obama rule.”
The legal battle continued with the Trump Administration’s Navigable Waters Rule and now the Biden Administration’s attempt to create their own version.
“The Biden Administration will have to comply with whatever the court says those words mean waters of the United States. Everyone agrees it was a very vague term. And that’s one of the reasons why historically, the supreme court has given a lot of leeway to the agencies because they still operate under this doctrine. If the statute is ambiguous, the expert agency should be the one who can interpret it.”
The outcome of the upcoming Sackett case could also depend on who is selected to fill retiring Justice Stephen Breyer’s seat, who wrote the majority opinion in the last Clean Water Act Case.
“Justice Breyer came up with a test that was designed to be kind of a pragmatic solution, that everyone realized that if you had a flat test that anything that touches groundwater, or doesn’t directly go into surface waters is exempt from a permit. It would gut the act but they also realize that they didn’t want any discharge that eventually after years, the percolating through, reached the waters of the United States with require a permit.”
Breyer is expected to retire after the court’s summer term, giving the Biden Administration just a few months to appoint and confirm a new Justice before the Sackett case is heard in October.
After hearing arguments in the fall, a final decision will likely come from the supreme court in June of 2023.