An op-ed opinion piece entitled “The Supreme Court votes for clarity from Congress. How refreshing” by George F. Will in The Washington Post drew an opposing viewpoint letter to the editor entitled “The court erred in EPA case,” published June 11, 2023.

 

Will’s original opinion piece took the stance that “the nation will be better governed because Michael and Chantell Sackett began resisting the [EPA] 16 years ago.”

In Sackett v. EPA, the Sacketts purchased a small parcel of land on wetlands 100 yards from Priest Lake in Idaho. Their property is separated from the lake by a roadway. When the Sacketts began filling their property to start construction on their home, the EPA stepped in and said they must apply for a Section 404 permit to fill their “wetland” property. This began an epic battle in which the case actually went before the U.S. Supreme Court (SCOTUS) twice.
In its second opinion in the case, on May 25, 2023, SCOTUS ruled the EPA and the U.S. Army Corps of Engineers (Corps) improperly claimed jurisdiction over a private property wetland.

In a unanimous ruling for the nine justices, Justice Samuel Alito, writing for the majority, stated, “Wetlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby.”

The decision stated that “federal protection of wetlands encompasses only those wetlands that directly adjoin rivers, lakes and other bodies of water,” according to the Cobb County Courier. “This is an extremely narrow interpretation of the Clean Water Act (CWA) that could expose many wetlands across the U.S. to filling and development.”

“The court held that if Congress intended this, it should have clearly said so,” stated Will’s opinion piece. “Regarding ‘major questions’ — matters with immense economic and political consequences — the legislature must legislate rather than leave substantive lawmaking to executive agencies.

“In the Sacketts’ case, the judicial branch again reproved the executive branch’s discretion as lawmaking, and reminded the legislative branch that agencies’ unwarranted power fills spaces created by inexplicit (‘best’) legislative language.  Doing so, the court buttressed the rule of law: Law must give adequate notice of what behavior is required or proscribed.”

The response letter, written by William Weinischke, strongly objects and disagrees with Will’s opinion.

“The problem with the court’s ruling and Mr. Will’s thinking is that Congress could not have been clearer in expressing its intent and the purpose of the [CWA], the first sentence of which provides ‘the objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’” Weinischke wrote. “The EPA’s charge is to enforce the law to fulfill that objective. The EPA has the burden of proving that conduct or actions undermine that objective, usually by expert testimony. The court has substituted its judgment for that of the experts, essentially taking the side of polluters instead of clean water.

“Rather than following the unambiguous language of the statute, the court, not environmental experts, is determining environmental policy.”

At the end of the day, it seems clear the Sackett’s property shouldn’t have been subjected to EPA regulations because the property is separated from the wetlands by a road.

However, Weinischke’s point is valid. The CWA’s objective is clearly stated.  Federal agencies employ experts and gather relevant data to support regulatory decisions. Although Agency decisions are costly to industry and often swayed by the political leanings of the current administration, shouldn’t the uniting objective be to protect our nation’s air and water?

When every regulatory decision is litigated for years and the judicial branch issues conflicting decisions that stall regulations for years, there’s no progress and pollution continues unabated.