Alito: the Clean Water Act did not authorize the EPA to protect the bodies of water its text was specifically amended to protect

The latest takeover of the administrative state led by Sam Alito was so lacking in any basis in the relevant statute that he lost Brett Kavanaugh, but kept ReaSOnAbLE, mODERATe REAcTionAry John Roberts, so he got his five votes:

On Thursday, the Supreme Court dealt a devastating blow to the nation’s wetlands by rewriting a statute the court does not like to mean something it does not mean. The court’s decision Sackett v. EPA is one of the court’s most egregious betrayals of textualism in memory. Put simply: The Clean Water Act protects wetlands that are “adjacent” to larger bodies of water. Five justices, however, do not think the federal government should be able to stop landowners from destroying wetlands on their property. To close this gap between what the majority wants and what the statute says, the majority crossed through the word “adjacent” and replaced it with a new test that’s designed to give landowners maximum latitude to fill in, build upon, or otherwise obliterate some of the most valuable ecosystems on earth.

Justice Samuel Alito’s opinion for the court is remarkably brazen about this approach—so brazen that Justice Brett Kavanaugh (of all people!) authored a sharp opinion accusing him of failing to “stick to the text.” Alito began with a long history of the Supreme Court’s struggles to identify the “outer boundaries” of the Clean Water Act, as if to explain why the time had come for the court to give up wrestling with the text and just impose whatever standard it prefers. The law expressly protects “waters of the United States” (like rivers and lakes) as well as “wetlands adjacent” to these waters. Congress added the wetlands provision in 1977 to codify the EPA’s definition of “adjacent,” which also happens to be the actual definition: “bordering, contiguous, or neighboring.” Under that interpretation—the one Congress adopted—wetlands that neighbor a larger body of water remain protected, even if they aren’t directly connected.

Why did Congress make that choice? Because wetlands provide immense environmental benefits: They filter and purify water draining into nearby streams, rivers, and lakes. They slow down runoff into these larger bodies. And they serve as vital flood control. In other words, the Clean Water Act has to protect “adjacent” wetlands to serve its overarching goal of safeguarding the broader “waters of the United States” from pollution.

Too bad, Alito wrote: We don’t like the definition that Congress used. It could lead to “crushing” fines for landowners and interfere with “mundane” activities like “moving dirt.” It interferes with “traditional state authority.” And it could give the EPA “truly staggering” regulatory authority. Five justices on the Supreme Court think all of that is very bad. So they declared that, instead of applying the statute’s words, the court would impose a different standard: Only wetlands with “a continuous surface connection” to larger bodies of water merit protection under the Clean Water Act.

This definition—which, it just can’t be stressed enough, appears nowhere in the law—is a crushing defeat for wetlands and their protectors. These ecosystems, as Kavanaugh pointed out, are frequently separated from larger bodies of water by “man-made dikes or barriers” as well as “natural river berms, beach dunes, or the like.” Such wetlands “play an important role in protecting neighboring and downstream waters,” which is why Congress included them in the statute. But under the majority’s new test, they are stripped of federal protection.

As Kagan explains in her concurrence-in-judgment-only, the majority’s move in gutting the very clear statutory authority given to the EPA by Congress is to create an ad hoc “exceedingly clear” standard that in its essence is designed to prevent Congress from making any policy choice a majority of the Supreme Court doesn’t like:

Republican complaints about federal judges “legislating from the bench” were, as with virtually all conservatiove discourse in the US, pure projection. And bad faith statutory interpretation like this and Brnovich is a particularly pernicious and anti-democratic problem, because it leaves Congress with essentially no outs. It’s very, very, very bad.