THE LAWLESSNESS OF SACKETT V. EPA.

• Date: 22 December 2023
• Author: Buzbee, William W.
• Published date: 22 December 2023

CONTENTS
                INTRODUCTION
                I. THE SACKETT SETTING AND RULING, IN BRIEF
                II. Statutory Neglect and Contextual Evasions
                 A. Decontextualizing and Omitting the Act's Texts
                 B. Disregarding the Act's History and Important Waters
                 Precedents
                 C. Avoiding the Statute's Decision Criteria and Amendments
                 Regarding Wetlands
                 D. Judicial Textual Substitutions, Additions, and Deletions
                 E. Neglecting the Statute's Express Textual Criteria for Section
                 404 Permitting
                 F. Adding a New Atextual Private-Property-Protecting Substantive
                 Canon
                 G. Statutory History Omissions
                III. SHRINKING FEDERAL WATERS POWER DUE TO ALLEGED ONEROUS
                 CONSEQUENCES AND STATUTORY BREADTH
                 A. Skewed Consequences Analysis
                 B. Condemning Congress's Textual Choices About Statutory Reach and
                 Procedures
                 C. Disregarding the Record and Highlighting Hypothetical Abuses
                IV. FAILURES TO ENGAGE FRANKLY WITH IMPLICATED SUPREME COURT
                 PRECEDENTS
                V. PROSPECTIVE EFFECTS OF SACKETT'S LAWLESSNESS
                CONCLUSION
                

INTRODUCTION

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court's opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis of the Court's respect for other branches' constitutional roles and, in particular, congressionally enacted policies; the predictability of statutory interpretation moves by the Court; the rigor and accuracy with which the Justices grapple with other legal actors' actions and contentions; plus the Court's characterization of and honest work with its own precedents. In addition, the Court's opinions are lawlike or less lawlike depending on the clarity of the Court's reasoning and fact-law linkages, so its own prospective effects are clear and knowable. (1)

The Court's ruling in Sackett v. EPA, (2) which radically reduces the reach of the Clean Water Act's protected "waters of the United States," (3) is unusually lawless even for a Court that in the last few years has often shown itself willing to overrule precedents. Overruling unsettles the law but, if done transparently and with full grappling with the old law and clear explanation, it is not necessarily lawless. Sackett involves unacknowledged overruling, and further shows lawlessness in its statutory interpretation, its characterization of its past Clean Water Act precedents, and in repeatedly characterizing the stakes and Act's reach without hewing to the case facts, agency records, or balanced work with the Clean Water Act's actual governing texts.

This brief Article, which is part of a follow-on paper symposium with scholars analyzing Sackett, parses the Sackett majority opinion against the backdrop of the statute's actual provisions, the facts of the dispute, decades of tested and vetted regulatory materials, and key environmental and administrative law precedents. With almost no acknowledgment of the revolution wrought by the opinion, the Court--speaking through the majority opinion of Justice Samuel Alito--leaves a trail of abandoned, undercut, and unsettled bodies of law. Some owners of land-water borderline properties with an eye on new real estate development may have reasons to celebrate, antiregulatory think tanks have been rewarded, plus lawyers may benefit from sorting out new legal confusion. But as a result of Sackett, the nation's waters are far more imperiled, others' expectations dashed and needs neglected, and the nation's legal fabric has been harmed. The majority opinion is built on layers of lawlessness.

I. THE SACKETT SETTING AND RULING, IN BRIEF

This Part briefly explains the setting and facts of the Sackett case, places it in legal context, and provides a quick distillation of the ruling.

Sackett was the latest in a line of cases on the reach of federal power under the Clean Water Act (the Act). (4) The Act's key jurisdictional provision extends federal power to protect "navigable waters," with that phrase then defined with the term "the waters of the United States," often referred to as "WOTUS" or here, as "Waters." (5) If a disputed water is a jurisdictional Water under the Act, then discharges of pollution into that water are subject to permit requirements. Industrial effluent discharges require permits under section 402's National Pollution Discharge Elimination System (NPDES). (6) Section 404 permits are triggered when discharges involve dredge or fill material, with the historical focus on wetlands protection. (7) Oil spills are governed by their own separate provisions. (8) Importantly, section 404 permitting has a strongly protective skew, with any avoidable pollution discharges basically prohibited. (9) And because sites at the border of land and water are often of great value, court skirmishing over this definition has been recurrent before the Supreme Court. (10)

In contrast, with the exception of the Trump administration, bipartisan stability characterized the political branches' forty-five years of regulatory policies under the Clean Water Act. Regulations broke down the types of Waters and clarified their status and exclusions, Congress and agencies both added new ways to provide site-status guidance and streamlined permitting, and agencies both in specific regulatory proceedings and science surveys illuminated what kinds of Waters provide which particular functions. (11) The Waters-land borders, however, unavoidably give rise to difficult close calls. Perhaps most importantly, the Court's previous two major "waters of the United States" decisions both created new opportunities and raised new questions. (12) Although some types of waters are undoubtedly jurisdictional--most clearly, large rivers and coastal areas--Supreme Court interventions since 2001 have left the answer far less evident for wetlands, smaller streams and tributaries, headwaters, and water features in the vast arid regions of the United States.

Several cases prior to Sackett provided the jurisprudential precedents. (13) First, a unanimous Supreme Court in United States v. Riverside Bayview Homes, Inc., (14) upheld federal jurisdiction over wetlands adjacent to larger waters actually navigable for trade, ships, and the like. (15) Such larger waters are often referred to as "traditional navigable waters" or "navigable in fact" waters. (16) Importantly, Riverside Bayview Homes seemed to answer several pressing questions with clarity. The Court spoke unanimously. The agencies assessing the line between land and water and protecting wetlands from filling were, the Court stated, engaged in an expert, science-laden process and were, therefore, given judicial deference. (17) Despite the Act's use of "navigable," the Court said that term was of "limited import" given the statute's focus on water quality, ecological effects, "integrity" of the nation's Waters, and deterring pollution. (18) The Court concluded that the 1972 Clean Water Act and 1977 amendments extended jurisdiction over types of waters, including "adjacent wetlands," that would not in ordinary parlance be characterized as traditionally navigable. (19) The Court emphasized the Act's focus on Waters protection, need for "ecological judgment[s]," and regulatory consideration of hydrological effects on ecosystems. (20) It affirmed jurisdiction "even when the moisture creating the wetlands does not find its source in the adjacent bodies of water." (21) As with earlier decisions, the Court recognized the ambitious reach and antipollution policies that pervade the Act. (22) The Court also emphatically rejected calls for the Court to impose a "clear statement" rule and narrow the statute's reach due to property impingements that could raise issues of regulatory takings. (23)

Since Riverside Bayview Homes, the political branches (other than the executive branch during the Trump administration) remained supportive of expansive waters protection and a strong Act, but the Supreme Court in several decisions limited its reach and spawned legal confusion, or at least toeholds, for the arguments later wielded in Sackett. In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), (24) the Court rejected federal authority over isolated waters that were visited by migratory birds. (25) Despite numerous commerce links at the disputed site, the Court questioned federal power to assert jurisdiction over a wet site created by past commercial uses that was slated for a new landfill operation. (26) The Court revived the defined term "navigable" as language limiting Waters protections, plus highlighted an Act savings clause and federalism concerns as further support. (27) In part because the SWANCC case did not really explain the basis for its concerns and declination to give the agencies deference, it spawned more conflict and opportunity for the Act's opponents. (28)

Five years later, in Rapanos v. United States, (29) the Court split in complicated ways and generated no single majority opinion. But in stating what was protected, what was not, and when and why waters were protected, judicial alignments did create issue-based majorities. Justice Scalia wrote for a plurality in building on SWANCCs limiting language and federalism rationale. (30) That Scalia plurality opinion called for generally limiting federal power to continuously flowing, relatively permanent, and connected waters. (31) In language that may now have importance, and that is further analyzed below, that plurality said that, under this advocated test, jurisdiction could be asserted over "relatively permanent" and sometimes...