Supreme Court Grants Certiorari to Clarify the Scope of Federal Regulatory Jurisdiction under the Clean Water Act.

While the Supreme Court’s ruling to issue certiorari for two cases challenging race discrimination in college admissions might grab headlines today, two of the Courts cert grants to date are very significant for administrative law and environmental law. These cert grants concern legal challenges to the Federal Trade Commission’s and Environmental Protection Agency’s regulatory actions, respectively.

Sackett v. Environmental Protection Agency, Once again, the Supreme Court has decided that it will examine the question of federal regulatory competence under Clean Water Act. Sacketts attempted to develop their land over a decade ago, but have repeatedly been stopped by claims of federal regulatory authority (CWA). The Sacketts came first to the Supreme Court to contest an EPA administrative compliance ordering requiring them to stop developing their property and to restore it. They are now challenging the Federal Government’s decision on how their parcel was used in the first instance.

Sackett Certiorari was granted by the Court in order to determine “Whether the Ninth Circuit determined the appropriate test for determining whether wetlands constitute ‘waters’ of the United States under the Clean Water Act (33 U. S. C.). §1362(7).” It could lead to a limited discussion of how the Ninth Circuit applied the Supreme Court’s fragmented caselaw regarding the federal jurisdiction that regulates “waters of America.” This case is more likely to be used by the Court as an opportunity for clarification and refinement of the definition. Perhaps even adopting Justice Scalia’s four-justice plurality approach in Rapanos v. United States. Justice Scalia was joined by three justices Rapanos The Court’s opinions are not changed (Roberts and Thomas, Alito), but at least two other people have voiced sympathy to limit the “waters” that fall under federal control (Kavanaugh or Gorsuch).

This case was granted by the Court. We won’t have to wait to litigate over the regulatory definitions for “waters in the United States”, which would give us more certainty about the federal regulatory authority. Instead, the Court will address this question directly. For those concerned about Chevron Deference: Note that the SWANCC The Supreme Court already ruled the EPA, Army Corps and EPA shouldn’t be merged ChevronDeference to this question will only be granted insofar it raises important federalism questions, and could intrude on the traditional state authority on land use.

Arizona’s district court remanded and invalidated the Trump Administration’s Navigable Waters Protection Rule. It allowed the Biden Administration time to write a new rule. Any new definition must now take into account the Supreme Court’s revised guidance. This means that the Biden Administration may have to adopt a CWA rule significantly more narrow than what it wants.