Opinion | Clean water ruling again reveals a radical and impatient court

Do not be fooled by the technically unanimous nature of the ruling in favor of an Idaho couple that has been trying for 16 years to build a house on a lot 300 feet from a lake. The court’s decision on Thursday in Sackett v. Environmental Protection Agency is a 5-4 split; Justice Brett M. Kavanaugh (good for him!) joined the court’s three liberal justices in a far more reasoned interpretation of the Clean Water Act that would have respected text and precedent while still finding for the Sacketts.

Once again, the conservative justices reveal themselves to be textualists of convenience. The Clean Water Act requires a permit for dumping pollutants — and this includes the backfilling that the Sacketts were doing to prepare their lot — into the “waters of the United States.” Such waters are explicitly defined to include “wetlands” that are “adjacent” to streams, rivers and other navigable bodies of water covered by the law.

The majority agrees on all this but then waves its magic statutory wand to redefine, and narrow, the meaning of “adjacent.” It transforms the definition to apply solely to wetlands that are actually adjoining — that have a “continuous surface connection” — to the larger body.

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This disrespects — actually, it ignores — the law’s text and traditional methods of statutory interpretation. As Kavanaugh noted, dictionary “definitions of ‘adjacent’ are notably explicit that two things need not touch each other in order to be adjacent.” In fact, other provisions of the law use the narrower term, “adjoining.” Congress knew when to use adjoining if that’s what it meant.

More Kavanaugh: “As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.”

No longer, according to the majority, in an opinion written by Justice Samuel A. Alito Jr., Kavanaugh charitably labeled the majority’s approach “unorthodox” and “atextual.” Another word might be lawless. The majority’s approach blithely dismissed some 45 years of consistent interpretation through eight presidential administrations, Republican as well as Democrat. Even the Trump EPA thought adjacent meant adjacent.

But the conservative justices have been itching to do this for years, since a splintered 2006 ruling in which Justice Antonin Scalia tried to scale back the reach of the Clean Water Act but couldn’t assemble the necessary majority.

Sackett reinforces what we already knew: This is a court that doesn’t like government regulation and it is going to do what it can — text and precedent be damned — to neuter it. Thus the majority, in last year’s West Virginia v. EPA, invented a “major purpose” test to limit the reach of another major environmental law, the Clean Air Act. In this case, it adopts another new test — when Congress exercises such power “over private property” it must use “exceedingly clear language” — to rewrite the Clean Water Act to its liking.

As Justice Elena Kagan explained in a concurrence joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, this is nothing short of another judicial power grab. “The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy,” Kagan wrote.

And why? Not because the law compels it, but because the majority doesn’t like the law. “Congress, the majority scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of land-owners,’” Kagan observed. “Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”

More judicial power-grabbing to follow. The court next term will consider whether to ditch the four-decade old practice, known as Chevron deference, of having courts defer to federal agencies’ interpretations of the laws they administer when the statutes are ambiguous. If Chevron falls, as seems all but inevitable, courts will be even more firmly in the driver’s seat to control policymaking.

This isn’t right, and it is also unnecessary. When the court reached out to take Sackett, the Biden administration was in the midst of rewriting the rules on how the Clean Water Act applied to wetlands. But the majority had its votes. Why wait? Why hold back? That could be the motto of this radical and impatient court.