Supreme Court Grants Certiorari to Clarify the Scope of Federal Regulatory Jurisdiction under the Clean Water Act

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The Supreme Court’s decision to grant certiorari in two cases challenging the use of race in college admissions may grab the headlines, but the Court’s other two cert grants today are quite significant for administrative and environmental law, in that they concern challenges to regulatory actions by the Federal Trade Commission and Environmental Protection Agency, respectively.

In Sackett v. Environmental Protection Agencythe Supreme Court has decided (once again) to wade into the question of federal regulatory jurisdiction under the Clean Water Act. The Sacketts have been trying to develop their property for over a decade, only to be frustrated by assertions of federal regulatory authority under the CWA. As I detailed here, the Sacketts first came to the Supreme Court seeking the right to challenge an EPA administrative compliance order demanding that they cease developing and restore their land. Now they are challenging whether the federal government has anything to say about how they use their parcel in the first place.

In Sackett the Court granted certiorari to consider “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U. S. C. §1362(7).” This could result in a narrow consideration of whether the Ninth Circuit properly applied the Supreme Court’s fractured caselaw on the scope of federal jurisdiction to regulate “waters of the United States.” More likely, the Court will use this case as an opportunity to clarify and refine the definition, perhaps even embracing the approach adopted in Justice Scalia’s four-justice plurality in Rapanos v. United StatesThree justices who joined Justice Scalia’s Rapanos opinion are still on the Court (Roberts, Thomas, Alito), and at least two others have expressed sympathy for constraining the scope of “waters” subject to federal control (Kavanaugh and Gorsuch).

The Court’s decision to grant this case means we might not have to wait for litigation over regulatory definitions of “waters of the United States” before getting greater certainty as to the scope of federal regulatory jurisdiction. The Court will instead address the question directly. (And for those who worry about Chevron deference, note that in the SWANCC decision the Supreme Court already held that the EPA and Army Corps should not get Chevron deference on this question insofar as it raises significant federalism questions and risks intruding on traditional state authority over land use control.)

Last fall, a district court in Arizona vacated and remanded the Trump Administration’s Navigable Waters Protection Rule (NWPR), clearing the way for the Biden Administration to draft a new rule of its own (while also encouraging federal regulators to throw out jurisdictional determinations made under the NWPR, even though they had previously told the Supreme Court that landowners may rely on those determinations for five years). Now any such new definition will have to account for the Supreme Court’s updated guidance. In all likelihood, this means the Biden Administration will have to adopt a rule governing CWA jurisdiction that is significantly narrower than it would like.

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