With the reverberations from the U.S. Supreme Court's decision in West Virginia v. Environmental Protection Agency ("EPA") (2022) 142 S.Ct. 2587 still resonating, it granted certiorari in a Clean Water Act case that may well become the next vehicle for the Court's majority to apply the "major questions doctrine."
While the Supreme Court granted certiorari on January 24, 2022, in Sackett v. Environmental Protection Agency (2022) 142 S.Ct. 896 well before the final opinion was released in West Virginia v. EPA on June 30, 2022, several more recent amici curiae briefs expressed concerns that the Court could base its decision in the Sackett case on the major questions doctrine.
The Major Questions Doctrine
According to the Supreme Court majority, the major questions doctrine developed to address a "particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted."
In West Virginia v. EPA the majority was skeptical that Congress granted EPA authority to reduce air pollution from power plants by "forcing a shift throughout the power grid from one type of energy source [coal based generation of electricity] to another [wind and solar] instead of reducing emissions from existing coal powered plant sources. To overcome the majorities' skepticism, "the Government must—under the major questions doctrine—point to 'clear congressional authorization' to regulate in that manner."
After analyzing the Clean Air Act, the majority concluded that "it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme…. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."
The Ninth Circuit Opinion in 'Sackett v. EPA'
The Sackett's saga started in 2007 when the Sacketts started to build a home in an established residential neighborhood located in Idaho near Priest Lake. EPA ordered the construction to cease asserting that the Sackett's land had navigable waters (i.e., wetlands) subject to EPA's and the Army Corps of Engineers' ("Army Corps") jurisdiction. According to EPA and the Army Corps the wetlands are adjacent to a tributary of a traditional navigable water, Priest Lake.
EPA and the Army Corps define waters of the United States as including adjacent wetlands, in accordance with 40 C.F.R. § 120.2(1)(i); 33 C.F.R. § 328.3(a)(4). Under the Clean Water Act, pollutant discharges into the waters of the United States without a permit constitutes a violation of the Clean Water Act.
In response to a neighbor complaint, EPA and the Army Corps conducted an inspection and determined that the Sackets were importing fill material to prepare the site to construct their home on wetlands without a permit. Under the Clean Water Act, the Sacketts were required to obtain a permit before depositing any fill material, such as gravel, onto the wetlands. EPA thereafter issued a compliance order, later repealed, requiring the Sacketts remove the fill and restore the property to its natural state.
The Sacketts initiated litigation claiming that their property did not contain wetlands, and that EPA's and the Army Corp's decision was premised on an erroneous assertion of jurisdiction under the Clean Water Act. On August 16, 2021, the Ninth Circuit Court of Appeals in Sackett v. U.S. Environmental Protection Agency (9th Cir. 2021) 8 F.4th 1075 issued its opinion holding that EPA's compliance order was based on a permissible understanding of the Clean Water Act.
The Sacketts argued that the definition of waters of the United States should be based on Justice Scalia's plurality opinion in Rapanos v. United States (2006) 547 U.S. 715. No opinion in Rapanos had a majority.
In Rapanos, Justice Scalia concluded that, “'waters of the United States' extend only to 'relatively permanent, standing or flowing bodies of water' and to wetlands with a 'continuous surface connection' to such permanent waters." Justice Kennedy concurred with the judgment, but asserted “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.”
In Sackett the Ninth Circuit concluded that “Justice Kennedy's concurrence provides the controlling rule of law” from Rapanos. In applying Justice Kennedy's “significant nexus” test, the Ninth Circuit concluded that EPA has jurisdiction to regulate the Sacketts’ property.
Possible Application of the Major Questions Doctrine
The question the Supreme Court intends to answer in Sackett is "[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands is 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7)." This section defines the term “navigable waters” as meaning "the waters of the United States, including the territorial seas."
Among the amici curiae briefs is one on behalf of 167 former and current U.S. Members of Congress in support of the Ninth Circuit's opinion. In their brief, the Congress members urge the Supreme Court not to trigger the major questions doctrine because the EPA's and the Army Corps' "powers are expressly stated and longstanding; no abrupt policy change is at issue that would trigger this Court's 'major questions' canon. Instead, the Army Corps and EPA engaged in the ordinary work that the Act asks of them, as they have done since the 1970s."
The Brief by Amicus Curiae the National Association of Clean Water Agencies in support of EPA urges the Supreme Court to "reject the requests of several amici for it to find that the [Clean Water Act] unlawfully delegates legislative authority to the Agencies."
The association argued that the Clean Water Act already "provides such a limiting principle by confining the Act's jurisdictional reach to 'navigable waters.' In addition the association expresses its concern that a 'finding of unlawful delegation of legislative authority would upend the federal regulatory structure that has for five decades shielded regulated entities from an inconsistent, unpredictable, and unworkable patchwork of activist-driven and judicially created water quality requirements.'"
On the other side of the issue is the Cato Institute led Amici Curiae brief. The Cato brief focuses on Justice Breyer's 1986 law review article in which he set forth what the brief describes as a "workable criteria for balancing the competing constitutional demands placed on courts in administrative law cases, a conflict he presented as pitting 'the need for regulation' against 'the need for checks.'"
"Under Breyer's framework, courts first ask whether the question presented is 'one that the agency or the court is more likely to answer correctly.' The purpose of this inquiry is to determine which institution — the executive or the judiciary — has comparatively greater expertise," the Cato brief stated. It continued and concluded that "legal expertise, rather than scientific know-how, is paramount in setting limits on federal authority under the Clean Water Act."
Justice Breyer's second query is "whether the legal controversy is 'important,' because 'Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of a statute's daily administration.'"
Again the Cato brief answers in the affirmative based on Justice Breyer's dissenting opinion in Rapanos urging that the "Clean Water Act is 'not merely another law but rather was viewed by Congress as a total restructuring and complete rewriting of the existing water pollution legislation.'"
The Amici Curiae brief of Fourteen National Agricultural Organizations supporting the Sacketts argues that the "breadth given to the term 'waters of the United States' by [EPA and the Army Corps]…has all the hallmarks of a major question of ‘vast economic and political significance.'" Therefore, the logic goes, that before an agency can decide this type of major question, the Clean Water Act must "plainly authoriz[e][] the agency's action."
The brief concludes that the Clean Water Act " does not plainly authorize the Agencies to assert jurisdiction over ditches, intermittent streams, ephemeral drainages, interstate ponds, or wet areas that are connected to navigable waters only by virtue of some 'chemical, physical, or biological' nexus."
Agency Flexibility Following Major Questions Doctrine
Justice Kagan's dissenting opinion in West Virginia points out that the Clean Air Act provides regulatory flexibility and discretion to EPA.
"It imposes, to be sure, meaningful constraints: Take into account costs and nonair impacts, and make sure the best system has a proven track record. But the core command — go find the best system of emission reduction — gives broad authority to EPA," Kagan said.
As regulations get more stringent the need for flexibility increases. Flexibility is essential in fashioning rules to, for example, reduce impacts on small businesses, encourage commercialization of new and emerging technologies, reduce environmental impacts potentially caused by the rule, and employing the best long term method to achieving the goals Congress set in its Legislation. The benefits of agency flexibility benefits both business and environmental interests.
If the Supreme Court relies on the major questions doctrine, hopefully the application will consider the need for agency flexibility. Oral argument on the Sackett case, scheduled for October 3, 2022, is the next opportunity to gage the Supreme Court's interest in applying the major questions doctrine to the Clean Water Act.
