Right-Wing US Supreme Court Delivers 'Catastrophic Loss for Water Protections'

The U.S. Supreme Court's right-wing majority on Thursday severely curtailed protections for "waters of the United States."

The decision in Sackett v. Environmental Protection Agency (EPA) is "unanimous in result but very split in reasoning," explained Slate's Mark Joseph Stern. "The upshot of Sackett is that, by a 5–4 vote, the Supreme Court dramatically narrows" which wetlands are covered by the Clean Water Act (CWA).

The majority opinion—authored by Justice Samuel Alito and joined by all of the court's other right-wing members except Justice Brett Kavanaugh—concludes that the CWA only applies to wetlands with "a continuous surface connection" to larger bodies of water, excluding those that are "adjacent."

Earthjustice declared in response to the ruling that "this is a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."

Manish Bapna, president and CEO of the Natural Resources Defense Council (NRDC), was similarly critical, saying that "the Supreme Court ripped the heart out of the law we depend on to protect American waters and wetlands."

"The majority chose to protect polluters at the expense of healthy wetlands and waterways. This decision will cause incalculable harm. Communities across the country will pay the price," Bapna warned.

"What's important now is to repair the damage," he added. "The government must enforce the remaining provisions of law that protect the clean water we all rely on for drinking, swimming, fishing, irrigation, and more. States should quickly strengthen their own laws. Congress needs to act to restore protections for all our waters."

Elizabeth Southerland, former director of science and technology in EPA's Office of Water, noted that "since 1989, the U.S. government has used Clean Water Act authority to either prevent the filling of wetlands or to permit filling only when an equal acreage of wetlands is reclaimed or restored."

"Wetland preservation is critical for providing flood control, absorbing pollutants, preventing shoreline erosion, storing carbon, and serving as a nursery for wildlife," stressed Southerland, now a volunteer with the Environmental Protection Network.

Thursday's decision, she said, "is a big win for land developers and miners, who will now be free to destroy certain types of wetlands without paying for wetland reclamation," and "a big loss for communities who will have to pay more to treat their drinking water and respond to increased flooding and shoreline erosion."

The high court was criticized for hearing the case—brought by an Idaho couple denied a permit by the EPA—as the federal agency was finalizing a new waters of the United States (WOTUS) rule following the Trump administration's widely condemned rollback. The Biden administration's policy was just finalized in December.

"While Earthjustice and our allies are closely evaluating the impact of the Sackett decision on the new WOTUS regulation," said Sam Sankar, the legal group's vice president of programs, "we can say with certainty that the court has once again given polluting industries and land developers a potent weapon that they will use to erode regulatory protections for wetlands and waterways around the country."

Highlighting that "wetlands play an integral role in protecting downstream waterways and reducing flooding—which will only worsen as climate change makes extreme weather more frequent," Food & Water Watch legal director Tarah Heinzen said the right-wing ruling "rejects this established science in favor of corporate developers' profiteering."

Now, Heinzen added, "the Biden administration and states must get creative and use every tool at their disposal to protect our rivers, streams, and wetlands from this devastating decision."