Document Type

Article

Publication Date

2024

Abstract

Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United States and 50- 80% of streams in the United States. Many states are unlikely to fill the gap to protect those waters. In addition, to the extent that those waters are not protected under the CWA, they lose important protections under the  Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and other federal environmental laws.

While much of the academic and journalistic focus has been appropriately on the devastating environmental impacts of the decision, Sackett v. EPA is also a vivid example of the evolution of the Supreme Court's approach to statutory interpretation over the past half-century.  Many commentators have criticized the decision because the majority appeared to misapply traditional tools of statutory interpretation'  and to rely on substantive policy canons" to adopt a tortured reading of the statute that aligned with the Justices' personal policy preferences.'  The rhetoric used by the majority throughout its opinions clearly demonstrated the Justices' opposition to the policy choices made by Congress in the CWA. Many critics have complained that the majority inappropriately usurped the role of Congress by reading the statute in a manner that ignores the legislative intent and the statute's purposes. Similarly, critics charge that the majority expropriated the role assigned to the Executive Branch by Congress and failed to accord appropriate deference to the expertise of the Executive Branch. The approach taken by the Sackett Court is markedly different from the approach taken by the Court in reviewing statutory challenges to the federal environmental laws in the first decades after they were enacted by Congress.

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