This can't be good:
The Supreme Court said yesterday that it would hear a challenge to the scope of the Clean Water Act, sparking concern from environmentalists that the high court could narrow the law's reach “in ways long sought by developers and homebuilders,” as The Washington Post's Robert Barnes reported.
The order was the latest indication that the conservative majority on the Supreme Court is stepping in to assess the limits of the nation's bedrock environmental laws — potentially in ways that hamstring President Biden's environmental agenda.
It comes as the justices are poised to hear oral arguments in February in cases challenging the Environmental Protection Agency's authority under the Clean Air Act to regulate greenhouse gas emissions from coal-fired power plants.
“It seems like we have a new conservative supermajority on the court that is much more inclined to do a slash-and-burn expedition through our major environmental laws,” Robert Percival, who directs the University of Maryland's environmental law program, told The Climate 202.
Here's what to know about these pending cases:
The Sacketts, who are represented by the conservative Pacific Legal Foundation, have won at the Supreme Court before. This time, they're calling on the high court to resolve the famously muddled 2006 case Rapanos v. United States, in which the justices split 4-1-4 over the definition of “waters of the United States,” which the Clean Water Act was passed to protect in 1972.
“There are at least five justices who are skeptical of giving agencies too much authority,” Ryan said.
Damien Schiff, a senior attorney at the Pacific Legal Foundation, told The Climate 202 that he and the Sacketts were “very pleased” that the justices agreed to hear the case.
“To the extent that there are many justices on the court today who would be attracted to a textualist analysis, I think for that reason alone, the test from the Scalia plurality would be attractive,” he added.
The Climate 202 previously covered these cases in depth here. But in a new development, 192 Democrats in both chambers of Congress are urging the justices to preserve the agency's climate authority, according to an amicus brief shared exclusively with The Climate 202.
A separate coalition of lawmakers, including Sens. Sheldon Whitehouse (D-R.I.) and Bernie Sanders (I-Vt.), also filed an amicus brief yesterday that asserts the challengers' arguments “reek of politics.”
The Supreme Court said yesterday that it would hear a challenge to the scope of the Clean Water Act, sparking concern from environmentalists that the high court could narrow the law's reach “in ways long sought by developers and homebuilders,” as The Washington Post's Robert Barnes reported.
The order was the latest indication that the conservative majority on the Supreme Court is stepping in to assess the limits of the nation's bedrock environmental laws — potentially in ways that hamstring President Biden's environmental agenda.
It comes as the justices are poised to hear oral arguments in February in cases challenging the Environmental Protection Agency's authority under the Clean Air Act to regulate greenhouse gas emissions from coal-fired power plants.
“It seems like we have a new conservative supermajority on the court that is much more inclined to do a slash-and-burn expedition through our major environmental laws,” Robert Percival, who directs the University of Maryland's environmental law program, told The Climate 202.
Here's what to know about these pending cases:
SCOTUS takes on WOTUS
The justices said yesterday that they would consider, probably in the term beginning in October, a long-running dispute involving Chantell and Michael Sackett, an Idaho couple prevented from building a home on their land by an EPA order, which determined that the property contained a wetland and the couple needed a federal permit.The Sacketts, who are represented by the conservative Pacific Legal Foundation, have won at the Supreme Court before. This time, they're calling on the high court to resolve the famously muddled 2006 case Rapanos v. United States, in which the justices split 4-1-4 over the definition of “waters of the United States,” which the Clean Water Act was passed to protect in 1972.
- Under the test proposed by then-Justice Anthony M. Kennedy, a wetland must have a “significant nexus” to regulated waters. Federal courts have favored this interpretation, which informed the Obama administration's Clean Water Rule in 2015.
- Under the narrower definition proposed by then-Justice Antonin Scalia, a wetland must have a “continuous surface connection” to regulated waters. Organizations such as the U.S. Chamber of Commerce and National Association of Home Builders favor this interpretation, which informed President Donald Trump's Navigable Waters Protection Rule.
- A federal court has since struck down Trump's rule. The Biden administration is planning to issue a new rule.
“There are at least five justices who are skeptical of giving agencies too much authority,” Ryan said.
Damien Schiff, a senior attorney at the Pacific Legal Foundation, told The Climate 202 that he and the Sacketts were “very pleased” that the justices agreed to hear the case.
“To the extent that there are many justices on the court today who would be attracted to a textualist analysis, I think for that reason alone, the test from the Scalia plurality would be attractive,” he added.
Democrats to SCOTUS: Preserve the EPA's climate authority
Meanwhile, the Supreme Court is poised to hear oral arguments in West Virginia v. EPA, in which Republican-led states are challenging the EPA's authority under the Clean Air Act to regulate carbon dioxide from coal-fired power plants, on Feb. 28.The Climate 202 previously covered these cases in depth here. But in a new development, 192 Democrats in both chambers of Congress are urging the justices to preserve the agency's climate authority, according to an amicus brief shared exclusively with The Climate 202.
- Section 111 of the Clean Air Act “must be read as broadly authorizing the EPA to address new and evolving air pollution problems, including greenhouse gas emissions from existing [power plants]," the brief says.
- The brief was led by House Select Committee on the Climate Crisis Chair Kathy Castor (Fla.), House Energy and Commerce Chair Frank Pallone (N.J.) and Senate Environment and Public Works Chair Thomas R. Carper (Del.). It was signed by 29 senators and 163 members, including House Speaker Nancy Pelosi (Calif.).
A separate coalition of lawmakers, including Sens. Sheldon Whitehouse (D-R.I.) and Bernie Sanders (I-Vt.), also filed an amicus brief yesterday that asserts the challengers' arguments “reek of politics.”
