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This essay first appeared in the June 8, 2023 Epoch Times.
The Supreme Court’s ruling in Sackett v. Environmental Protection Agency (EPA) (pdf) follows a pattern common since the court’s Obamacare decisions: The justices trimmed back a government agency’s overreach, but failed to address the constitutionality of the statute that facilitated the overreach.
Like eight other SCOTUS opinions since 2013, the Thomas–Gorsuch concurring opinion in the Sackett case relies on my published constitutional scholarship (pdf). Naturally, I’m happy and grateful. But this will not prevent my testing the case against the Constitution.
The Constitutional Background
The Constitution granted Congress power “to regulate Commerce … among the several States.” The historical record shows this included authority over navigation (pdf). Authority over navigation, in turn, included power to govern navigable waters. Navigable waters encompass, besides seas and oceans, those lakes and rivers capable of carrying ships for transporting goods.
However, the Constitution reserved to the states control over most activities involving land and water within state boundaries. During the debates over whether the Constitution should be ratified, the document’s advocates emphasized this repeatedly (pdf) (pdf) (pdf). Their representations were confirmed by the Ninth and Tenth Amendments.
Among activities left to primary state jurisdiction were agriculture, mining, and other forms of land use; regulation of land titles and transactions; and governance of non-navigable lakes, streams, and wetlands. Curbing pollution of non-navigable waters was a matter for state law. States responded both with direct regulation and a body of civil jurisprudence known as the “law of nuisance.”
Nevertheless, during the administration of President Richard Nixon, Congress adopted several environmental statutes inserting the federal government deeply into land and water issues. Among these were the Clean Air Act (1970) and the Clean Water Act (1972).
The constitutional pretext for these laws was that pollution, while not actually interstate commerce, had a “substantial effect on interstate commerce.” This phrase derived from the Supreme Court’s re-write of the Constitution during the late 1930s and early 1940s—a process I documented in an earlier Epoch Times series.
The Clean Water Act regulates the discharge of pollutants into “navigable waters.” Standing alone, that doesn’t create a major constitutional problem. The problem arises because the statute defines “navigable waters” as “the waters of the United States.”
At first glance, “waters of the United States” (often abbreviated “WOTUS”) might mean every drop of H2O in the country. However, Justice Samuel Alito’s majority opinion in the Sackett case points out that “waters of the United States” likely was intended as an alternative term for navigable lakes and streams.
But the agencies responsible for enforcing the Clean Water Act—the Army Corps of Engineers and the EPA—construed WOTUS to embrace almost all standing or running American water anywhere, except for mud puddles and swimming pools. The reasons the agencies have offered for this conclusion have shifted over time.
Armed with this expansive “interpretation,” the agencies crowded out state regulators. They repeatedly threatened, harassed, and punished landowners for changing the configuration of their property, even when their property was nowhere near a navigable stream.
For example, when Michael and Chantell Sackett backfilled their land, the EPA ordered them to restore it or face penalties of up to $40,000 per day. There was no water on the Sackett’s land. Yet the EPA claimed jurisdiction because:
- The Sacketts’ lot lies beside a 30-foot-wide road;
- on the other side of the road is a water ditch;
- this ditch flows into a non-navigable creek;
- this creek flows into Priest Lake, and
- although Priest Lake is located wholly within the State of Idaho, the EPA designated it as navigable—not because it’s a trade corridor but because out-of-state tourists sometimes use it.
(Incidentally, at one time, the agencies claimed that use of a pond by out-of-state birds was sufficient to give the agencies jurisdiction. In 2001 SCOTUS rejected that claim.)
The Court’s Decision
All nine justices agreed that the EPA had exceeded its power by attempting to control the use of the Sacketts’ land.
In addition, Justice Alito’s majority opinion held that the phrase “waters of the United States” means only defined bodies of water—such as lakes and streams—and those wetlands that so border them that their waters’ surface merges with the surface of the lake or stream.
Four justices (Brett Kavanaugh, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) thought the EPA could regulate a wetland if it’s in the same general vicinity as a lake or stream.
Justices Clarence Thomas and Neil Gorsuch joined the majority but also concurred in a separate opinion. They pointed out that much of the confusion in this area is due to the fact that the court’s current Commerce Clause doctrine is very different from what the Constitution actually says. This distortion is one reason federal regulation of water has so far exceeded what’s permissible.
The Court’s Discrimination in Favor of Federal Laws
For many years, the court has been ready and willing to strike down state laws it finds unconstitutional. But when it considers the constitutionality of federal laws, it becomes very deferential.
Consider Tyler v. Hennepin County (pdf), which I treated in my last essay. That case unhesitatingly ruled that a Minnesota state law imposing a fine or forfeiture was unconstitutional. The forfeiture was a one-time penalty of $25,000.
But in the Sackett case, the court preserved in narrower form a clause in a federal statute the EPA employs to impose steep criminal punishments and recurring civil penalties of up to $60,000 each day.
In my view, the court should have ruled that “waters of the United States” means “navigable waters,” and nothing more. This is because any other interpretation would exceed the powers of the federal government. The Constitution gives the feds no direct authority over most non-navigable lakes, streams, or wetlands, except to ensure that a navigable stream remains navigable. Not only would this have better preserved the Constitution’s federal balance, but it would have better curbed agency overreach.
What About Pollution?
Even the court’s mild resolution provoked howls of protest from apologists for federal power. One group, for example, called the decision “devastating.”
This hyperbole thrives on ignorance. Unfortunately, Justice Alito’s and Justice Kagan’s opinions contributed to that ignorance by attributing much American environmental success to the Clean Water Act.
You can count the Clean Water Act as a success only by ignoring what would have happened in its absence. In the early 1970s the states already were making great progress in the battle against pollution. One scholar has documented, for example, how levels of air pollution already were dropping rapidly before the Clean Air Act was adopted.
The primary reason is that as a population’s wealth and prosperity increase, so do demands for a cleaner environment. (Struggling and starving people rarely care about the environment.) By the 1960s, Americans were demanding that states and the private sector clean up the environment, and the states and private sector were responding.
Some cynics have observed that new federal interventions seldom are responses to real needs. Federal intervention usually comes only after it becomes clear that the states or the market have solved, or are about to solve, a purported problem. Federal politicians and bureaucrats intervene because by doing so they can crowd out the market and the states, enabling them to take credit for what would have happened anyway.
Unless, of course, federal action makes matters worse, as in the case of health care. Then federal politicians and bureaucrats claim to need even more power to “cure” the problem they’ve aggravated.