Trump has rolled back decades of clean water safeguards. The Supreme Court went even further.
Nearly two decades ago, a Michigan man named John Rapanos attempted to fill three wetlands on his property to make way for a mall. State regulators warned him that doing so without the approval of the federal Clean Water Act was illegal. Rapanos argued that you couldn’t steer a boat from his wetlands to a federal waterway, so the Environmental Protection Agency had no jurisdiction over his country. When Rapanos ignored EPA cease and desist orders, the government successfully filed a civil lawsuit against him, after which he promised, “fight to the death.”
Instead he made it All the Way to the highest court in the country. In a separate decision in 2006, the Supreme Court reversed the judgment against Rapanos but failed to reach a majority decision on whether wetlands that flow into federally regulated “waters of the United States” qualify for the same protections.
In 2016, President Barack Obama attempted to answer that question with a new EPA rule that extended the Clean Water Act of 1972 to millions of acres of swamps, marshes, and lagoons whose waters — and all associated pollution — flow into already federally regulated waterways flow .
Republicans condemned the move as a federal land grab, while environmentalists hailed what they saw as a sane interpretation of the decades-old law in light of the latest scientific broadcasts on hydrology and the increasing threat of extreme droughts and toxic algal blooms.
In 2020, President Donald Trump rescinded much of the rule’s protections and roughly halved the total wetland conservation area. In 2022 President Joe Biden touched to restore Obama-era rule.
On Thursday, the Supreme Court’s new right-wing supermajority reviewed the 2006 decision to remove federal protections for nearly all wetlands Trump had deregulated — and then some, removing even the few protections the Republican government was trying to maintain.
The 5-4 ruling — authored by Justice Samuel Alito, who was joined by Justices John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — revoked the Clean Water Act’s authority over at least 59 million acres of wetlands in the US, according to a treasure by the environmental group Earthjustice.
“The scope of the Clean Water Act is significantly limited,” said Duke McCall, a federal water law partner at Morgan Lewis law firm. “The affected waters will be significantly narrowed.”
The Obama administration included all wetlands connected to existing federal waterways by underground aquifers or streams. The Trump EPA narrowed the scope to include only wetlands with visible surface connections to rivers, lakes and other long-established “United States bodies of water.” However, the Republican government made an exception for wetlands cut off from federal waterways by a levee, bridge, or other man-made barrier.
The court granted no such latitude, but instead dismantled nearly half a century of established federal wetland jurisdiction — a fact noted by Conservative Justice Brett Kavanaugh in his dissenting opinion.
At the very least, the ruling takes the US back to the mid-1970s, to the early days of the Clean Water Act, said Emily Hammond, a professor of energy and environmental law at George Washington University. But Hammond stressed that it could be worse, pointing out that majority opinion repeatedly invokes the Supreme Court’s 1870 decision in the Daniel Ball case, which held that waterways were “navigable” only then , if they were “actually navigable” and used for intergovernmental or governmental purposes foreign trade.
“I believe courts, Congress and the authorities have always understood that Congress’s use of the term ‘waters of the United States’ is meant to go beyond the ‘actually navigable’ standard advocated by Daniel Ball,” Hammond said. “Seeing that the majority are now invoking this old decision suggests that their goal is to reduce the scope of the Clean Water Act back to the level it would have been before the Clean Water Act.”
“In a way, that takes us so far back,” Hammond said, referring to the case of 1870.
Kavanaugh wrote that while the last eight governments from 1977 “held significantly different views on how to regulate the environment, including under the Clean Water Act,” they all “recognized as a matter of law that the coverage of the Clean Water Act.” “Adjacent Wetlands” means more than adjacent wetlands and includes wetlands separated from covered bodies of water by artificial dikes or barriers, natural riverbanks, beach dunes, or the like.”
Thursday’s verdict, he argued, will ““Negative consequences for water bodies” across the country.
“By limiting the scope of the Wetlands Act to only contiguous wetlands, the court’s new test means that some long-regulated contiguous wetlands are no longer covered by the Clean Water Act, with significant implications for water quality and flood control across the country United States will have,” Kavanaugh wrote.
The ruling is part of what Liberal Justice Elena Kagan sees as a clear trend by the court to limit the federal government’s statutory power to regulate pollution at a time of dramatic ecological upheaval — at a time when other countries are taking drastic steps to help a semblance of natural flow to preserve biodiversity and order. Last year, the Supreme Court drastically curtailed the EPA’s powers to curb power plant emissions under the Clean Air Act.
“The vice is the same in both cases: the appointment of the Court as the national decision-maker in environmental policy,” Kagan wrote. “So in closing, unfortunately, I want to repeat what I wrote last year with the substitution of just one word. ‘[T]The court replaces that of Congress with its own policy-making ideas. The court will not allow the cleaning [Water] Act as directed by Congress. The court, not Congress, will decide how much regulation is too much.”
Last year, the Supreme Court took the unusual step of hearing a case relating to a defunct power plant regulation — the Supreme Court normally dismisses lawsuits without active legal significance — in what was widely viewed as an attempt to preemptively tie the Biden administration into revitalizing a power plant to prevent controversial rule from the Obama era. The court’s six conservative justices, including Kavanaugh, advocated permanently sealing off the legal route the Obama administration had taken to justify parts of its Clean Power Plan regulation.
The conservative judges’ apparently partisan agenda is hardly the only perceived conflict of interest sowing distrust in the country’s highest court. Trump-appointed Barrett, whose father spent much of his career working for Royal Dutch Shell, declined to retire of important cases involving the oil giant, even as Judge Samuel Alito resigned over his disclosed investments in oil and companies.
The investigative news portal Pro Publica released a series of revelations last month that revealed Thomas, who was appointed by President George HW Bush, failed to disclose private jet travel and real estate deals he received from billionaire real estate developer Harlan Crow. The National Multifamily Housing Council, which is closely associated with Crow — the CEO of Crow Holdings Inc. also chairs that group, and three of Crow’s companies are contributing members — filed an amicus brief on an earlier iteration of this case, when Paul Blumenthal by HuffPost reported.
Republican lawmakers hailed Thursday’s decision as a victory for family farmers who have been crushed under pressure from regulators who want to make farming increasingly difficult and complicated.
“In a major victory for farmers, ranchers, small business owners and families — the Supreme Court has once and for all abandoned the Obama/Biden WOTUS rule violation,” Rep. Sam Graves (R-Mo.) wrote in one opinion.
But while “farmers and small business owners have been portrayed as the most compassionate victims of alleged government abuses,” McCall said, “property developers are a large affected group who have been strong opponents” of expanded wetland protection.
Another way Thursday’s ruling turns back time before the passage of the Clean Water Act in 1972 is by effectively restoring a variable patchwork of state water regulations, Hammond said.
“The Clean Water Act, of course, aimed to create some level of ground clearance between states so there wouldn’t be a race to the bottom with polluters migrating to states where they can pollute more because the guidelines are lenient,” they said. “This decision undermines the Clean Water Act so dramatically that, in a way, we are taking us back to a time when there were significant disparities between states in protecting our waters.”
“Those types of decisions are starting to add up,” Hammond added. “There is no doubt that there will be cumulative impacts and we will see shifts as a result.”