COLUMBUS, Ohio — The first two weeks of the U.S. Supreme Court’s new term are important ones for agriculture. The Court will hear arguments in two critical cases: the “Sackett” wetlands case and a challenge to California’s animal welfare law, Proposition 12. The new term for the Supreme Court (SCOTUS) begins October 3, with the Sackett case up as the Court’s first hearing. The Court will hear the Proposition 12 case on October 11. We focus this article on the Sackett case and will preview the Proposition 12 case next week.
The Sackett wetlands case, round 1. The Sacketts may have become household names across the country in 2012, after the U.S. EPA prohibited Michael and Chantell Sackett from building a home on land they had purchased near Priest Lake, Idaho. The Sacketts had filled wetlands on the property in preparation for construction, but the EPA issued a compliance order prohibiting further filling or construction and requiring restoration of the site. The agency claimed authority to do so by declaring the wetlands to be “navigable waters of the United States” subject to the Clean Water Act (CWA). The Sacketts challenged the order and EPA’s authority over their land. However, lower federal courts declined to hear the case, believing the compliance order was not yet a “final agency action” that could be reviewed since the EPA had not yet enforced the order. The case proceeded to its first appearance before SCOTUS, where the Court held that the compliance order was indeed a final agency action that could be reviewed in court.
Back in court. The Sackett case returned to the lower courts for determining whether the EPA had authority over the Sackett property. The issue became a common one for CWA cases: whether the Sackett wetlands were “waters of the United States” that fall under the CWA and the EPA’s authority. The challenge of that issue, however, is determining which “test” to apply to the situation. A court establishes a “test” as a framework for analyzing an issue. Over the years, courts have struggled to agree on a clear test for determining when a wetland qualifies as “waters of the United States” that are subject to the CWA. At this time, there are two competing tests developed by the Supreme Court: the “significant nexus” test advocated by Justice Kennedy and the “continuous surface connection” test proposed by Justice Scalia. Both the Trump and Biden administrations have also attempted to clarify the proper test by way of agency rulemaking, but those efforts are now tied up in litigation and revised rulemaking.
The Ninth Circuit decision. The Sacketts are now before SCOTUS for a second time because they believe the Ninth Circuit Court of Appeals did not use the proper test in their case. The appellate court applied the “significant nexus test,” which states that wetlands are “waters of the United States” when there is a “significant nexus” between the wetlands and navigable waters, as determined when the wetlands “either alone or in combination with the similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other cover waters more readily understood as ‘navigable.’” The significant nexus test represents a broader definition and would subject more wetlands to EPA authority than Justice Scalia’s test. Many argue that it’s also unclear and creates uncertainty for landowners.
The SCOTUS appeal. The question the Sacketts now raise with SCOTUS is whether the significant nexus test applied by the Ninth Circuit was the proper test to use for its wetland determination. The Sacketts argue that it isn’t. They also urge SCOTUS to adopt an alternative test akin to Justice Scalia’s test in Rapanos v. U.S., which states that wetlands should have a “continuous surface connection” to “relatively permanent, standing or flowing bodies of water” to be deemed “waters of the U.S.” The Scalia test, by requiring a continuous surface connection between wetlands and “permanent” waters, would narrow the extent of wetlands that are subject to the Clean Water Act.
Predictions. The Supreme Court surprised many when it announced its decision to once again review the Sackett case. Given the changes to the composition of the Court since it heard the Rapanos case back in 2006, a logical prediction is that the Court will not only set aside the Ninth Circuit’s application of the significant nexus test, but will also adopt Justice Scalia’s test as the proper way to determine when a wetland is a “water of the United States” subject to EPA jurisdiction under the Clean Water Act. We won’t know whether those predictions will become truth until sometime in 2023, when we can expect another Sackett decision from the Court.
Listen to the arguments in Sackett v EPA at 10:00 am on Monday, October 3 on the SCOTUS website at https://www.supremecourt.gov/oral_arguments/live.aspx or watch the arguments on sites like https://www.c-span.org/supremeCourt/.
–Peggy Kirk Hall, Associate Professor
Agricultural & Resource Law
Ohio State University