June 1, 2023
SCOTUS Just Trashed the Clean Water Act
The Supreme Court’s conservative supermajority significantly curtailed the protection provided by the Clean Water Act (CWA) in last week’s decision in Sackett v. EPA. Justice Alito’s majority opinion in the case is wholly nonsensical unless it is understood for what it is: a means to an end. This is an opinion that was not written with the statutory text, rational legal reasoning, or respect for scientific fact in mind. It was written to accomplish a sought-after outcome: the gutting of the CWA. It is the tragic, albeit predictable sequel to last year’s decision in West Virginia v. EPA, which significantly curtailed the EPA’s ability to regulate greenhouse gases.
Justice Thomas was particularly transparent about the supermajority’s agenda in his concurring opinion by referring to “New Deal era conceptions of Congress’ commerce power.” This reference to the New Deal is not random. Quite the opposite. It is the target that this conservative court has been gunning for since it acquired its sixth vote with the confirmation of Justice Amy Coney Barrett. With that sixth vote, the conservative block can lose one conservative justice and still rule the day, as it did with this case.
The supermajority’s goal is to rewind the clock by striking down as many New Deal related or inspired policies and regulations as it can get its hands on. It wants not only to reduce government until it can fit in the palm of your hand, but to empower the private sector to do what it wants, consequences be damned.
The CWA is one of our country’s most successful environmental protection laws. It was passed – with bipartisan support – over fifty years ago when our waters were so polluted that rivers caught fire. It has been wildly successful in cleaning up water in this country, to our shared benefit. Until now.
Unless Congress and the President immediately step in to rectify this decision, our waters are about to become much more contaminated. This means the water that we swim in, that wildlife relies on for survival, and that millions of people across the country drink. As Sam Sankar, senior vice president of programs at Earthjustice and guest on next week’s Broken Law podcast episode, said, "Almost 90 million acres of formerly protected wetlands now face an existential threat from polluters and developers.”
Justice Alito and the four other justices who joined his majority opinion claim to be defending the rights of landowners in slashing and burning the CWA. I beg to differ. Landowners drink water. The value of their land is impacted by the quality of the water surrounding or touching that land. If said water is on fire, I dare say the real estate value might take a hit. Landowners too enjoy wildlife, boating, and swimming. It is so shortsighted for the Court’s majority to climb atop its soap box and tout the rights of property owners with complete disregard for the devastation that its opinion will incur for all of us, landowners included.
This case is catastrophic. But unlike Dobbs, people across the country may not feel the impact of Sackett overnight, but feel it they will with time. This delayed devastation must not delay our outrage and public rebuke. Justice Alito’s reasoning and this case’s precedent is primed to wreck much of existing environmental regulation. As climate experts rightly call for much more aggressive policies to prevent irreversible climate change, this Court is poised to thwart any such policy that is enacted. We cannot wait for our rivers to again be on fire before we speak out.
As Justice Kagan wrote about this decision, the Court’s majority has appointed “itself as the national decision-maker on environmental policy.” We agree, this “is not how the Constitution thinks our Government should work.” And the truth of the matter is, the majority isn’t stopping with environmental policy. It has also anointed itself the decision-maker of labor policy.
The Court issued its decision in Glacier Northwest, Inc v. Teamsters this week, and it is yet another example of the Court declaring itself wiser and more powerful than Congress. The Court ruled that the National Labor Relations Act did not preempt an employer’s tort claim because the union in the case allegedly failed to “take reasonable precautions to protect” against the foreseeable and imminent danger to the employer’s property. Using the facts alleged by the employer, the Court dangerously opines on the propriety of the union's conduct in the strike, engaging with questions that Congress intended the National Labor Relations Board to address. As a result, the decision threatens to undermine the very uniformity in labor policy that Congress sought when it created the Board. Even more concerning, the decision risks weakening the right to strike more broadly.
We agree with Justice Jackson who wrote in the lone dissent in the case:
“[T]oday’s misguided foray underscores the wisdom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature.”
“Beyond this narrow reasonable-precautions requirement, however, employees have no obligation to protect their employer’s economic interests when they exercise the right to withhold their labor.”