Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson
By Richard L. Cate
The Supreme Court heard two important cases last week, both of which had implications for the future of wetlands in the United States.
First was the case of New Hampshire v. EPA. The question involved a challenge by New Hampshire and other states to the Clean Water Act’s ban on discharging wastewater that poses a threat to the state’s wetlands. The Clean Water Act limits the discharge of untreated sewage “into or on the waters of the United States” for seven years.
The plaintiffs pointed to the fact that the EPA’s rules regulating the discharge of “wastes” into waters “resulted from an unprecedented expansion of the discharge of wastewater into all waters of the United States, including our tributaries and wetlands.” The court was not persuaded. “The wastewater rule that the challenged regulations impose is not ‘an unprecedented expansion’ because the EPA has repeatedly promulgated regulations to cover the same conduct,” Justice Stevens wrote for the majority.
After citing the prior EPA regulations regulating the discharge of all types of wastewater into all waters of the United States for many years, he went on to cite a recent EPA regulation that covers “discharges resulting primarily from septic systems.” He concluded that “the EPA’s septic regulations are not sufficiently distinguishable from the wastewater regulations it considered.” Justice Stevens wrote that “the challenged regulations cannot be fairly characterized as an unprecedented expansion of the discharge of wastewater.”
And the second important case involved the future of wetlands in California. The Supreme Court heard arguments last week in Save Our Cascades v. Trump. The state of California brought suit claiming that the expansion of the Dakota Access Pipeline violated the National Environmental Policy Act, which requires federal agencies to consider the environmental consequences of proposed new federal action before undertaking it.
Justice Gorsuch delivered the majority opinion in the case on behalf of a unanimous court, and with his reasoning Justice Gorsuch largely follows the reasoning of the majority opinion in New Hampshire. He ruled that the pipeline violates two of the three key goals of the National Environmental Policy Act: the goal of “streamlining the permitting