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"Clear" as Mud

The Supreme Court Is Honing a New Weapon Against Federal Agencies

Justice Samuel Alito is inventing a new way for the high court to substitute its own judgment for that of lawmakers.

Justice Samuel Alito

The Supreme Court last week narrowed the Environmental Protection Agency’s ability to keep wetlands free from water pollution. In Sackett v. EPA, Justice Samuel Alito wrote for the court that wetlands only fell under the Clean Water Act’s scope if they were directly contiguous with what the statute describes as the “waters of the United States,” a catchall term for the myriad ways that water can appear in or around the United States.

Along the way, Alito appears to have sharpened a new tool in the court’s ongoing war against what it describes as the “administrative state”: the various federal regulatory agencies that issue rules based on the laws that Congress has written. He articulated a “clear-statement rule” in Sackett, a relatively novel legal theory that could give the court a new vehicle to second-guess lawmakers and agencies when they affect private property. That vehicle, so to speak, appears to rest on shakier legal ground than the court suggested.

Sackett began in 2007 when Michael and Chantell Sacketts backfilled some wetlands on a lot they had recently purchased in Idaho. The EPA had previously established that the wetlands in question ultimately drained into nearby Priest Lake even though it wasn’t directly connected to the body of water or the tributaries that fed into it. Among other things, the Sacketts argued that the wetlands weren’t “adjacent” to the “waters of the United States” that the Clean Water Act covers because there wasn’t a continuous surface connection. (The Sackett’s property is separated from the tributary by a road.)

The EPA countered that Congress clearly meant to use “adjacent” instead of “adjoining” in the 1972 law and that it was intended to cover a wider range of wetlands. All nine justices sided with the Sacketts on whether the wetlands they had covered up were the “waters of the United States.” But the case was a 5–4 decision in practical terms when it came to how they read the statute. Alito and four of the other conservative justices rejected the test used by lower courts to determine whether wetlands fell under the CWA’s terms, which looked for a “significant nexus” between wetlands and nearby navigable waters.

Instead, the majority applied a more stringent version of a clear-statement rule to achieve their goals. “First, this Court ‘require[s] Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property,’” Alito wrote. He quoted from the court’s ruling two years earlier in United States Forest Service v. Cowpasture River Preservation Association.

In Cowpasture, the court addressed an environmental group’s challenge to a pipeline that would briefly cross under the Appalachian Trail in a portion of a national forest in Virginia. The Forest Service, which believed it had jurisdiction over that part of the trail, granted a right-of-way permit to the pipeline company. The environmental groups claimed that jurisdiction actually lay with the National Park Service because, in their view, the secretary of the interior had delegated their authority over the entire trail to that agency.

Justice Clarence Thomas, writing for a 7–2 majority in that case, rejected that interpretation of the various federal laws governing national trails, national parks, and national forests. He also raised a slippery slope argument with the environmental groups’ reading of the law. “[The groups’] theory also has striking implications for federalism and private property rights,” Thomas claimed. “[They] do not contest that, in addition to federal lands, these 21 trails cross lands owned by states, local governments, and private landowners. Under [their] view, these privately owned and state-owned lands would also become lands in the National Park System.”

“Our precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property,” he continued. Thomas cited only one precedent for that proposition: Gregory v. Ashcroft. But that 1991 case had nothing to do with private property and Justice Sandra Day O’Connor made no mention of it in her majority opinion.

Instead, Gregory centered on a state constitutional amendment in Missouri that required state judges to retire at the age of 70. A group of appointed state judges had sued the state under the Age Discrimination in Employment Act of 1967 and on constitutional grounds, claiming that the mandatory retirement provision amounted to age discrimination. The court rejected the constitutional argument because it said the Equal Protection Clause doesn’t apply to age.

As for the ADEA claim, O’Connor explained that it was ambiguous whether Congress had meant to include appointed state judges under a general exemption for state elected officials and “appointee[s] on the policymaking level.” Since it was ambiguous, she wrote, the court would defer to the interpretation that did not interfere with state political structures. “This plain statement rule is nothing more than an acknowledgment that the states retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere,” O’Connor wrote.

That line of reasoning cited multiple prior decisions to establish a federalism-based clear-statement rule. Indeed, based on how the Constitution structures power between the federal and state governments, it makes sense to assume Congress does not intend to reshape state governments unless it specifically says so. No similar assumption applied to private property—at least not until Thomas drew one out of thin air in the Cowpasture ruling two years ago.

“Despite all this, the Court insists that Congress use ‘exceedingly clear language’ when it wishes ‘to significantly alter the balance between federal and state power and the power of the Government over private property,’” Justice Sonia Sotomayor wrote in a dissenting opinion in that case. “But Congress did. It used language so clear, in fact, that every year the Park Service provides an acreage report listing state and private land as part of the Appalachian Trail system unit.” She concluded that the majority’s outcome was “inconsistent with the language of three statutes, longstanding agency practice, and common sense.”

The court’s friendliness toward companies fighting environmental regulations is consistent and unsurprising. As I noted last week, Alito wrote with great sympathy for the Sacketts and property owners in general. He also expressed disagreement with Congress’s chosen method of addressing water pollution. That led to some veiled criticism of how he read the statute from Justice Brett Kavanaugh, who explained that Congress and the EPA had clearly and consistently meant “adjacent” to include noncontiguous wetlands.

“The Court suggests that ambiguities or vagueness in federal statutes regulating private property should be construed in favor of the property owner, particularly given that States have traditionally regulated private property rights,” Kavanaugh noted in an opinion joined by the court’s three liberal justices. “To begin with, the federal government has long regulated the waters of the United States, including adjacent wetlands.” He also noted that the court’s new test upended what had been a settled question for decades and would invite a wave of new litigation to determine what counted as a “continuous surface connection.”

Justice Elena Kagan was even more pointed in her concurring opinion, which functioned more like a dissent. “It relies as well on a judicially manufactured clear-statement rule,” she wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. “When Congress (so says the majority) exercises power ‘over private property’—particularly, over ‘land and water use’—it must adopt ‘exceedingly clear language.’ There is, in other words, a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting.”

If this fight feels familiar, that’s because it is. The Supreme Court’s conservative supermajority is rethinking core doctrines of administrative law on similar grounds. In last term’s ruling in West Virginia v. EPA, they used the “major-questions doctrine” to curb the agency’s power to regulate carbon emissions from aging power plants under the Clean Air Act. That doctrine rests on the idea that Congress must “speak clearly” if it wishes an agency to address a question of “vast vast economic and political significance.” What counts as “speaking clearly?” What counts as a policy question of “vast economic and political significance”? The court was, well, unclear on that.

As Kagan noted, the vagueness of these new doctrines opens the court to criticism that it is merely substituting its own policy preferences for those of Congress and federal agencies. The court will get another opportunity next term when it revisits the Chevron doctrine in Loper Bright Enterprises v. Raimondo. The Chevron doctrine holds that courts should defer to specialized agencies if the agency’s interpretation of federal law is based on a “permissible construction” of the statute in question. Conservative legal scholars and judges have long criticized the doctrine for supposedly giving too much power to agencies and weakening democracy. In practical terms, scrapping Chevron would transfer that power not to Congress or the people, but to the courts that second-guess them.

What makes last week’s opinion in Sackett—and the “exceedingly clear language” test that it articulated—so striking is that it is largely detached from the precedent it cites. “Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation,” Kagan observed. “It is an effort to cabin the anti-pollution actions Congress thought appropriate.”

Americans and their elected lawmakers can now only wait to find out which other long-standing laws aren’t “exceedingly clear” enough for the justices’ tastes.