Supreme Court Guts Clean Water Act as Conservative Justices Side with Polluters and Developers

“We look at how a new Supreme Court ruling awards a major victory to polluters and land developers. In a 5-4 decision last week, the justices sharply limited the authority of the Environmental Protection Agency to protect and preserve wetlands under the Clean Water Act. The ruling ends protections for about half of all the wetlands in the contiguous United States, jeopardizing access to safe drinking water for millions. “That just defies science, physics, commonsense,” says Earthjustice’s Sam Sankar, who urges Congress to take action to once again protect the country’s critical water resources.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

We turn now to look at another environmental story. In a major decision last week, the U.S. Supreme Court sharply limited the authority of the Environmental Protection Agency to protect and preserve wetlands under the Clean Water Act. It was a 5-to-4 ruling. The justices wrote that the Clean Water Act only applies to wetlands with a, quote, “continuous surface connection” to larger bodies of water, excluding wetlands that are near other bodies of water. The ruling ends protections for about half of all the wetlands in the contiguous United States.

Justice Samuel Alito wrote the majority opinion. He was joined by fellow right-wing Justices John Roberts, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett. However, conservative Justice Brett Kavanaugh joined the court’s three liberal justices in opposing the weakening of the Clean Water Act. Kavanaugh wrote the decision will have, quote, “significant repercussions for water quality and flood control throughout the United States,” unquote.

The court’s decision is seen as a major victory for polluters and developers. At the White House, Press Secretary Karine Jean-Pierre criticized the ruling.

PRESS SECRETARY KARINE JEAN-PIERRE: It will jeopardize the sources of clean drinking water for farmers, businesses and millions of Americans. Look, the Clean Water Act is the reason why America’s lakes today are swimmable, why we can fish in our streams and rivers, and why safe drinking water comes out of our taps. So, it was passed, as we all know, by a bipartisan majority in Congress back in 1972. It has since been used by Republican and Democratic administrations alike to protect our nation’s land and water.

AMY GOODMAN: To talk more about the Sackett v. EPA ruling, we’re joined now by Sam Sankar, the senior vice president for programs at Earthjustice, which filed an amicus brief with the Supreme Court in the case on behalf of Native tribes seeking to defend existing water protections.

Can you summarize what the court ruled and the effect it will have on the environment in this country, Sam?

SAM SANKAR: Sure. Thank you for having me.

So, to step back for a moment, the Clean Water Act is one of the most successful environmental laws that we have. Congress passed this law in 1972 because it recognized that the nation’s waterways were deeply in peril. Rivers were on fire. Fish were dying by the millions. And the nation recognized that we had a major problem. So, cast against that backdrop, the Clean Water Act has been a major success. While there’s more to be done, our nation’s waterways are broadly cleaner, our water is safer to drink, and things are better. And wetlands are protected.

So, we are now in a situation where the Supreme Court’s new ruling takes away protections from over half of the nation’s 100 million acres of remaining wetlands. So, the Supreme Court’s ruling says that those wetlands are no longer covered by the federal protections of the Clean Water Act. And that’s going to have tremendous implications for everyone. And that’s because wetlands are a critical source of water for all of us, and they also serve to filter and protect and be part of the ecological fabric of our nation’s waterways.

JUAN GONZÁLEZ: And, Sam, could you be more specific about how the court determines the definition of wetlands versus what the Biden administration was saying, this whole issue of the surface connections of wetlands to waters of the United States?

SAM SANKAR: Sure. Several years ago, in an opinion by Justice Scalia, the court — in a minority opinion by Justice Scalia, a group, a small group, of conservatives attempted to argue that the Clean Water Act only protects the wetlands that are connected by surface water to nearby waters. That opinion did not gather a majority of votes of the Supreme Court. Instead, for over 45 years, we’ve had a system in which every presidential administration and Supreme Court opinions have said that it’s not just the waters and the wetlands that are touching the waters; it’s the wetlands that are nearby; it’s the wetlands that are adjacent.

So, the opinion says the adjacent wetlands are really only those that are actually touching the waters. And as Justice Kavanaugh himself recognized, that just defies science, common sense, physics and everyone’s understandings of how wetlands are related to waters.

JUAN GONZÁLEZ: And what do you see as the next steps for those who want to protect the complete wetlands of the United States?

SAM SANKAR: What we need now is action from Congress, because the court’s opinion, while it expresses significant hostility to our nation’s environmental laws, can be addressed through legislation. Interestingly, when the Supreme Court ruled originally and Congress said originally that adjacent wetlands were protected, there’s been a massive lobbying effort over the last 45 years to weaken those protections. And, in fact, it has entirely failed. Now we can go back to Congress and say, “Do what you need to do to clarify to the Supreme Court that the Clean Water Act protects all our nation’s waters, including the wetlands that our waters depend on for their health.”

AMY GOODMAN: The conservative Supreme Court justices, their records, and what overall the court is going to see in the coming months, the cases you’re most concerned about, Sam?

SAM SANKAR: Well, it’s important to recognize that this Sackett decision is part of a thread of decisions from the Supreme Court. In last year’s —

AMY GOODMAN: And can you explain who Sackett is?

SAM SANKAR: Sure. The Sacketts are a family in Idaho that decided to develop on their property without a permit. They owned an excavation company and were aware of what the law said, but they called in that excavation company to dump an enormous amount of fill on their land. Their neighbors complained and asked the EPA to take a look at the property. And the EPA said, “You know, you a permit for this.” The Sacketts, rather than getting a permit, decided to fight and to go to the Supreme Court.

AMY GOODMAN: Sam Sankar, I want to thank you very much for being with us, Earthjustice’s senior vice president for programs. He’s speaking to us from Santa Fe, New Mexico.“