• Bebe Schaefer

Featured: The Nation's Highest Court is Setting the Country Backwards in Climate Legislation

The nation’s highest court is setting the country backwards after President Biden signed the most comprehensive climate legislation in decades.


In August, Congress and the Biden Administration passed the most comprehensive climate legislation in decades with the passage of the Inflation Reduction Act of 2022. The bill, dubbed the Inflation Reduction Act (IRA), was met with substantial praise from industry and environmental group’s alike. Just a few weeks earlier, the Supreme Court ruled in West Virginia V. EPA that Congress did not grant the EPA the authority to adopt the Clean Power Plan, an Obama-era effort to establish emission guidelines for states to limit CO2 emissions. In effect, the SCOTUS conservative supermajority substantially curtailed EPA’s authority to regulate greenhouse gas emissions – and may have set back President Biden’s climate agenda indefinitely. The juxtaposition of the IRA’s passage and the West Virginia case illuminate the Court’s bitterness about climate and environmental regulation, against the desires of most Americans.


According to a poll conducted by the New York Times, 66% of Americans see climate action as a high priority. Yet, the highest court continuously fails to account for the dangers posed by carbon dioxide and our increasingly warming world.


The Supreme Court, in 2023, will decide again on a case that will have lasting impacts on our nation’s environment, particularly our Waterways. This October, the Court will hear the oral arguments for Sackett V. EPA, a case concerning the Clean Water Act, which prohibits the discharge of certain pollutants into navigable Waters, defined as “Waters of the United States” or (“WOTUS”). The case that will provide the conservative justices an opportunity to rule on the meaning of WOTUS and the types of Waterways it encompasses. In 2007, Michael and Chantell Sackett bought a plot of land near Priest Lake, Idaho. As they were getting ready to build on top of the land they just purchased, they received an injunction order from the EPA because their property contained wetlands that constituted WOTUS and therefore fell under the Clean Water Act’s jurisdiction. Under existing law, WOTUS includes certain wetlands near navigable Waters, and the Clean Water Act requires individuals and businesses to file for a permit with the EPA if they wish to develop land on or near such wetlands.

Since the Sacketts were not aware of this when they bought the property and did not believe that their private property should have government interference, they decided to take this matter to court.


After an ongoing series of cases at various levels of the federal court system, the Supreme Court in 2023 will decide on an appealed case from the 9th Circuit where the Court will determine if the lower court utilized the proper test for determining whether wetlands fall within WOTUS under the Clean Water Act. The 9th Circuit ruled in favor of the EPA using Justice Kennedy’s test established in Rapanos V. United States concluding that the Sacketts' property constituted navigable Waters because of the existence of “a significant nexus” between the wetlands in question and navigable Waters in the traditional sense.


Given the current makeup of the court, Judges are likely to overturn the 9th Circuit and set forth a new test that will significantly weaken the authority of the EPA to regulate Water pollution. The impacts of such a decision would be felt around the country, as it would enable a great deal of agricultural and industrial projects to discharge pollution into our nation’s Waterways without any federal protections. If SCOTUS decides to roll back federal protections, it will return the authority to the states to regulate Water pollution, illuminating an act of cooperative federalism.


The country faces a Water crisis in more ways than one. Due largely to climate change, the U.S. is facing unprecedented degrees of drought, leaving historic Waters like the Colorado River at shockingly low levels. And, despite the effectiveness of the Clean Water Act since it was passed in 1972, more than 700,000 miles of Waterways, about 51 percent of assessed river and stream miles, are too polluted for swimming, fishing, or drinking.


Nevertheless, the conservative justices on the Supreme Court are likely gearing up to rule against the interest of Congress and the Executive Branch, the people, and the planet - backpedaling climate reforms once again against the desires of protecting collective Water sources for all to enjoy.

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