US property developers scored a big win after the Supreme Court imposed new limits on the Environmental Protection Agency’s authority over the country’s wetlands.
In the latest blow to the EPA, the decision from US’s highest court has restricted the scope of the 1972 Clean Water Act, which allows the agency to regulate pollutants dumped into “waters of the United States” such as lakes, rivers and oceans.
The case stemmed from an Idaho couple who had challenged the EPA after being barred from building a home near a ditch that fed into a mountain lake.
In a majority opinion penned by Justice Samuel Alito on the central question of which wetlands qualified for EPA oversight, the court found that the Clean Water Act only allowed for regulation of wetlands that have a “continuous surface connection” with “waters of the United States”.
The EPA previously had power to address pollution over wetlands with a “significant nexus” to navigable waters, even if they were separated by dry land. But, Alito wrote, the EPA had “no statutory basis to impose [this test]”.
Environmental advocates said the court’s opinion could lead to businesses dumping more pollutants into water. Manish Bapna, president of the non-profit Natural Resources Defense Council, said the ruling “ripped the heart out” of laws protecting US waters and wetlands. “This decision will cause incalculable harm.”
The ruling will leave regulation of wetlands up to US states, whose regimes vary widely. Property developers expect the decision will make it easier for them to build without requiring federal permits.
“We were actually very, very happy with the decision,” said Thomas Ward, vice-president of legal advocacy at the National Association of Home Builders, a trade body, adding that applying for permits was “very expensive and very time consuming”.
Ward said it could take a year or more to acquire these permits. “And the time is such a killer on projects because you’re holding all your loans and all the interest is adding up,” he added.
In a brief filed in support of the Idaho couple, the NAHB listed examples of developers that faced lengthy litigation, including a company in Illinois that sought to build residences on wetlands subject to the Clean Water Act. The business challenged the wetlands’ status, kicking off a 13-year legal battle that ended with a settlement and the government agreeing to pay $250,000 in legal costs.
The Supreme Court decision is the second to undercut the EPA’s authority, after the court last year curbed the agency’s ability to limit greenhouse gas emissions from power plants.
EPA administrator Michael Regan called Thursday’s ruling “disappointing” and said his agency would carefully consider its next steps.
US president Joe Biden said the decision “upends the legal framework that has protected America’s waters for decades” and would put US wetlands as well as bodies of water linked to them “at risk of pollution and destruction”.
Water pollution rules differ markedly from one state to another, with some such as Montana implementing more lax regimes, and others, such as California, imposing more stringent frameworks.
“In places where there are no backstop state protections or local protections, I expect a real push to develop and destroy in the wake of this [decision],” said Jon Devine, director of federal water policy at NRDC. The environmental group estimated that at least half of the approximately 110mn acres of wetlands in the contiguous US would become “vulnerable”.
All nine justices backed the court’s judgment but some disagreed with the majority’s interpretation of the Clean Water Act. Elena Kagan, joined by two fellow liberal justices, wrote there was “a thumb on the scale for property owners”.
Kagan also noted the previous EPA case and outcome, saying that both the court decisions “diminished” broad legal notions. “[A] court may not rewrite Congress’s plain instructions because they go further than preferred,” she said.
Conservative justice Brett Kavanaugh said the majority’s “overly narrow view” of the Clean Water Act “will have concrete impact”.
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