Author: Arjun Brij
In recent years, the Supreme Court of the United States (SCOTUS) has played a more indulgent role in shaping the landscape of environmental law and property rights in America. There are two landmark cases that have garnered significant attention worldwide and sparked contentious debates on the judiciary’s involvement in policy-making and interpretation of environmental law namely, the West Virginia v. EPA and Sackett v. EPA cases. These cases have raised critical questions about the scope of regulatory authority, and the delicate balance between environmental conservation and individual liberties. These two cases upended the meaning and interpretation of two important federal environmental protection statutes: The Clean Air Act and The Clean Water Act.
What are These Two Environmental Protection Statutes?
- The Clean Water Act (CWA), passed in 1972 and later amended, is the principal federal law that regulates water pollution in the United States. It is administered by the U.S. Environmental Protection Agency (EPA), in conjunction with state, local, and tribal authorities. The main goal of the CWA is to preserve and improve the quality of the nation’s waters in terms of their chemical, physical, and biological aspects. Key provisions of the Act encompass setting water quality standards, controlling point source pollution, implementing the National Pollutant Discharge Elimination System (NPDES), and safeguarding wetlands.
- The Clean Air Act (CAA), initially enacted in 1963 and later reinforced by amendments, is a federal law designed to combat air pollution and safeguard public health and the environment. Its main objectives are to control the release of hazardous air pollutants, define air quality benchmarks, and encourage the adoption of cleaner technologies. These initiatives involve the establishment of National Ambient Air Quality Standards (NAAQS), State Implementation Plans (SIPs), and New Source Review (NSR) processes.
Background & Context Behind Challenging These Two Laws: Under the amended Clean Air Act (CAA), Congress which is the legislative body of the United States granted the EPA authority (§ 7411(d)) to identify the “best system of emission reduction” for large stationary sources, such as power plants, and collaborate with states to implement plans incorporating these systems. The authority was divided into two regulations: one for emissions controls in new plants and another for existing plants.
In June 2014, during the Obama administration, the EPA proposed The Clean Power Plan (CPP) to address climate change by reducing carbon dioxide emissions from electricity generation by 32% of the 2005 levels by 2030. States were to submit implementation plans by 2018, with enforcement starting in 2022. These plans could include efficiency improvements, emissions controls, or adoption of renewable energy sources, potentially leading to New Source Reviews under § 7411(b) for older plants to meet new standards. However, the implementation was halted when the Supreme Court issued a stay following a lawsuit by several Republican-led states.
During Donald Trump’s presidency, the EPA replaced the Clean Power Plan with the Affordable Clean Energy Rule (ACE). ACE required coal-fired power plants to enhance their efficiency through new equipment, but some researchers argued that this approach might have increased overall greenhouse-gas emissions by promoting more coal consumption. Democrat-led states challenged ACE in court, leading the U.S. Court of Appeals for the D.C. Circuit to strike it down, citing a “mistaken reading of the Clean Air Act” and reaffirming the EPA’s broad authority in deciding the “best system” for emission reduction.
Subsequently, a coalition of coal companies and Republican states, including West Virginia, sought Supreme Court review, raising questions about the extent of the EPA’s regulatory authority in emissions control. The central issue in the consolidated case is whether the EPA’s authority under Section 111(d) of the Clean Air Act should align with the interpretations made during the Obama Administration or the Trump Administration.
Moving on to the Clean Water Act, before 1972, the EPA’s oversight of water pollution was limited to “navigable waters” under the Federal Water Pollution Control Act (FWPCA). In 1972, the Clean Water Act expanded the EPA’s jurisdiction to include all “waters of the United States,” leading to debates and legal cases over the definition of qualifying water sources. By the late 1980s, the EPA and the United States Army Corps of Engineers reached a shared definition, encompassing “wetlands adjacent to waters” already protected under their rule-making.
In 2004, an American couple purchased a 0.63-acre vacant lot in Idaho near Priest Lake and began constructing their home in 2007 with proper building permits. However, the EPA informed them that their lot might contain “wetlands” considered “navigable waters” under the Clean Water Act, thus subjecting it to regulation. The EPA directed the couple to halt construction until they obtained a permit from the United States Army Corps of Engineers. The couple received an administrative compliance order from the EPA in 2007 and subsequently sued under the Administrative Procedure Act.
On remand from the Supreme Court, the Sacketts argued in the United States District Court for the District of Idaho that their land was not subject to the Clean Water Act. In 2019, the district court concluded that the lot was regulated by the CWA. The United States Court of Appeals for the Ninth Circuit affirmed this decision in August 2021, and an attempt by the EPA to moot the litigation by withdrawing the compliance order was rejected.
The core question to be determined is whether the United States Court of Appeals for the Ninth Circuit established the correct test for identifying “waters of the United States” under the Clean Water Act.
The Judgement: On the final day of its 2021 term, the U.S. Supreme Court issued a significant decision impacting climate change and the administrative state. West Virginia v. EPA, held that the Environmental Protection Agency (EPA) does not have the authority, under the Clean Air Act, to enforce emissions reductions by shifting electricity production from higher-emitting to lower-emitting producers. The “generation shifting” approach was deemed a “major question” of exceptional economic and political importance by the Court. For the first time, the Court clarified that administrative agencies cannot make decisions on such major issues unless explicitly authorized by Congress. As the relevant section of the Clean Air Act lacked a clear statement granting the EPA this authority, the Court determined that the agency’s efforts to reduce carbon dioxide emissions strayed too far from its jurisdiction.
In the specific dispute in Sackett v. EPA, where the Court dealt with the problem involving the Idaho couple, all nine justices agreed that the Clean Water Act did not apply to the couple’s specific residential lot, but split 5-4, almost on ideological lines on the issue of interpreting the act. The Clean Water Act’s language is not entirely precise, particularly concerning the definition of “waters of the United States,” but it does specify that it applies to “wetlands adjacent” to covered waterways. Justice Elena Kagan’s dissenting opinion argued that “adjacent” in ordinary language means not only touching but also nearby, much like one house can be adjacent to another with only a stretch of grass and a picket fence separating them. However, the majority opinion articulated by Justice Samuel Alito took a narrower approach, suggesting that wetlands subject to the act’s restrictions on pollution should have a “continuous surface connection” to “waters of the United States” so that there is no clear separation between ‘waters’ and wetlands”.
Implications of the Judgement on Climate Change: The EPA’s authority to set pollution reduction standards for power plants under the Clean Air Act has been acknowledged by climate advocates, favoring the agency over the states. The upcoming power sector regulation, scheduled for release in 2023, is likely to build upon this acknowledgment. While the court’s ruling does limit the EPA’s options, it can still mandate measures such as carbon capture technology adoption and the use of less greenhouse gas-emitting fuels.
However, the court’s ruling goes beyond the EPA and poses a challenge for the Biden administration to achieve its 2030 emissions reduction goal of 50-52 percent below 2005 levels. Presently, national emissions have only decreased by approximately 15 percent from 2005 levels. Failing to fulfill these commitments could hinder the United States’ diplomatic efforts in international climate negotiations. Some experts fear that the ruling makes the goal nearly unattainable, while others argue that with specific actions from Congress, the Biden administration, and states, the goal could still be achievable.
Climate change being a matter of immense political and economic significance, and Congress’ inability to pass substantial climate legislation for years, the court found the EPA lacked a clear authorization. This lack of clarity extends to other agencies, potentially opening up climate regulations to challenges. Some have already pointed to the court’s decision as grounds to challenge proposed climate rules from various agencies, such as the Department of Transportation, the Securities and Exchange Commission, and the existing Nuclear Regulatory Commission rule.
The Court’s ruling has immediate implications for the executive branch’s climate change mitigation efforts. The uncertainty resulting from the court’s ruling may cause setbacks, leading federal bureaucrats to refrain from implementing climate regulations. The EPA may need to focus on emission reductions at individual plants rather than across entire sectors. Moreover, the decision’s broader implications mean that lower courts are likely to face major questions and challenges regarding agency actions. If regulations are pursued and challenged in court, trial judges will need to determine whether the major questions doctrine applies, which the majority opinion did not clearly address, as highlighted in Justice Elena Kagan’s dissenting opinion. Such legal processes may cause further delays as district court determinations make their way to the appellate court.
The implications of the US Supreme Court ruling on human health are particularly worrisome. Young individuals, including fetuses, infants, and children, are more susceptible to environmental stressors and will bear a heavier burden from the climate crisis. The combined effects of climate change and air pollution, primarily caused by fossil fuels, pose a significant threat to infant and child development, subjecting almost every child to at least one climate change-exacerbated hazard, such as air pollution, extreme heat, floods, wildfires, or food insecurity. Cumulative effects are likely to emerge as more children experience the consequences of these hazards together. For instance, heat and air pollution have been observed to synergistically increase the incidence of preterm birth and asthma-related hospitalizations in children. Additionally, there are concerns about the cumulative impact on the mental health of children and adolescents. Children from minority ethnic groups and low-income households, who face disproportionate exposure to air pollution and extreme weather events, are at even greater risk.
On the other hand, what does the Sackett case regarding wetlands mean for America’s water system?
In his dissenting opinion opposing the Court’s approach, Justice Kavanaugh enumerates several ways in which the Court’s reinterpretation of “adjacent” to mean “adjoining” will have significant real-world implications. He expresses concern that this decision might result in long-standing and previously regulable wetlands falling outside the scope of regulatory authority for government agencies.
Kavanaugh provides an example of the Mississippi River’s extensive levee system used for flood prevention. However, he points out that these levees could create a barrier that seemingly excludes adjacent wetlands on the other side from Clean Water Act coverage, even though these wetlands play a crucial role in flood control.
One of the concerns raised by Kavanaugh is the ambiguity surrounding the majority’s requirement that wetlands must have a “continuous surface connection” to a regulated waterway. While the court acknowledges that temporary interruptions in surface connection may occur due to natural phenomena, Kavanaugh raises questions about the practical application of this requirement and its impact on which wetlands are still subject to the Clean Water Act like “How difficult does it have to be to discern the boundary between water and a wetland for the wetland to be covered by the Clean Water Act? How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered? How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert?”
The interconnection of water systems presents a fundamental challenge for water regulators, as pollutants in wetlands can often find their way into nearby rivers, lakes, and other waters. This is why Congress extended the Clean Water Act not only to significant waterways but also to wetlands adjacent to those water bodies. However, despite this reasoning, five justices ruled that Congress’s decision to apply the law to adjacent waterways does not hold.
Conclusion: On a broader scale, the recent judgments by the Supreme Court have introduced uncertainty into federal rulemaking, especially concerning regulations related to climate change. Unfortunately, time is a critical factor that climate scientists emphasize we cannot afford to waste. Scientific assessments based on the consensus of the United Nations warn that any additional heating contributes to increasingly extreme weather events. Furthermore, if global temperatures surpass 1.5 degrees Celsius above preindustrial levels, the world faces the peril of severe and potentially irreversible climate disruptions.
As federal rulemaking on climate change experiences delays and uncertainties, the responsibility for climate action will heavily fall upon state and local governments as well as the private sector. During the Trump administration, these entities stepped in to fill the regulatory void. However, even at the state and local levels, there may be delays due to the time-consuming nature of formulating regulations, along with the possibility of facing legal challenges. With numerous states and territories potentially enacting varying requirements, the industry could encounter confusion and increased costs. Consequently, many private sector entities may choose to delay making significant investments until they receive clearer guidance from government leaders to avoid potential shareholder concerns.
While the two Supreme Court rulings have left room for the Environmental Protection Agency (EPA) to pursue future rulemaking in America’s power sector & water system, it simultaneously imposed tighter restrictions on regulatory actions by all federal agencies through the major questions doctrine. Unfortunately, the climate crisis does not wait for us to resolve doctrinal ambiguities. As legal challenges continue to unfold, the planet will continue to warm, leading to increasingly severe and devastating climatic events.
