Reining in the E.P.A.

Tom Finnerty02 Jun, 2023 3 Min Read
Take that Chevron and shove it.

Recently Clarice Feldman wrote an article for us on a case before the Supreme Court that might possibly lead to the reversal of the Chevron doctrine, established in the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron grants an extraordinary degree of authority to federal regulatory agencies to interpret legal statues within their remit. In practice it has meant that D.C. bureaucrats are empowered to interpret laws in ways that are far removed from how they were envisioned when passed in Congress. And it's a doctrine towards which our majority-conservative Supreme Court seems increasingly hostile.

We now have further evidence of that hostility -- the other day the Supreme Court dealt another blow to the dubious principle of "administrative deference." The case, Sackett v. Environmental Protection Agency, challenged the Environmental Protection Agency's claimed authority to maximally interpret their jurisdiction over the "navigable waters" of the United States, granted in the Clean Water Act of 1972. National Review's Andrew McCarthy explains:

The term navigable waters had a well-established meaning when the CWA was enacted in 1972; but Congress mucked things up by defining navigable waters as “the waters of the United States.” Over time, the EPA has stretched this term, such that it could mean the Mississippi River or a puddle in your backyard. Progressive environmental activists in the bureaucracy have used this ambiguity to stop people from building on their property, halt business development, etc. In the case at bar, for example, the Sacketts were prevented from building on their soggy Idaho property, with regulators and lower courts ruling that it constituted “wetlands” — enough to be “waters of the United States” — even though it was remote from any permanent body of water.

In this case the court unanimously found for the Sacketts against the E.P.A., because there was no doubt that their rights had been violated. On the larger question of administrative deference, however, there was a notable split. Justice Alito's majority opinion -- joined by justices Thomas, Gorsuch, and Barrett, along with Chief Justice Roberts, made it a point to clarify that the Clean Water Act should be read and interpreted as it was intended by its authors -- according to the "original public meaning" of the law, in conservative jurisprudential parlance. Here's Alito:

The CWA’s use of “waters” encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as “streams, oceans, rivers, and lakes.”

So, not a puddle in your backyard. Meanwhile Justice Brett Kavanaugh, joined by the court's three liberals, wrote an opinion which complains about the narrowing of the E.P.A.'s authority, which he says “will leave some long-regulated adjacent wetlands no longer covered... with significant repercussions for water quality and flood control throughout the United States.”

This is, of course, ridiculous. The majority here is reasserting the principle that the E.P.A. cannot act beyond the powers delegated to it by the people's representative's in Congress. If Congress wishes to expand the authority of the E.P.A. over those "long-regulated adjacent wetlands," it is free to do so. Alternately, state and local bodies charged with environmental regulation should be free to step in in such instances, also with the appropriate oversight from elected officials. The key in both would be buy-in from the people -- just authority being derived from the "consent of the governed," in the words of the Declaration.

Opposition to this idea has been animating the progressive movement since its foundation, but these days it is back in fashion at the Supreme Court. Which is why the rest of America's permanent bureaucracy has no doubt been watching these developments with increasing alarm (and why the Left has been working so hard to preemptively delegitimize their long-time favorite branch of government, the Court). Chances are the hits are going to keep on coming, and decades of progressive legal precedents -- with Chevron as their centerpiece -- might not survive.

Tom Finnerty writes from New England and Ontario.


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One comment on “Reining in the E.P.A.”

  1. “If Congress wishes to expand the authority of the E.P.A. over those "long-regulated adjacent wetlands," it is free to do so.”
    Not quite. Rapanos vs. US (2006) also required that the navigable water adjacent to any such wetlands be in some way associated with interstate commerce, since it’s only the Interstate Commerce clause of the Constitution that allows federal intrusion into the realm of state sovereignty in the first place. Absent the ICC, the CWA would only be enforceable on federal lands. Thus, for example, Priest lake in Idaho is “navigable” in the lay sense of the word, but it’s not “navigable” under WOTUS since it is isolated from international waters and/or interstate waters for the purposes of commerce. In Sackett, the EPA failed to demonstrate a plausible connection of the Sackett property to Priest lake, but even if they had demonstrated such a connection, the property would still not be “jurisdictional” under the CWA because Priest lake itself is not jurisdictional.
    But otherwise, yes, your point is well-taken inasmuch that the bureaucracies should not be allowed to speak where Congress has remained silent. Good reporting.

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