WASHINGTON — The Supreme Court opened its nine-month term on Monday by hearing a conservative challenge to the federal government’s authority to regulate wetlands under a landmark environmental protection law, with Justice Ketanji Brown Jackson asking multiple questions on her first day on the bench.
Jackson, the first Black woman to serve on the court, was quick off the mark, asking a series of questions early on in the nearly two hours of arguments indicating sympathy for maintaining expansive federal authority over wetlands. The conservative majority seemed more skeptical, although there appeared to be no consensus on how to draw a line that would limit federal jurisdiction over sometimes hard-to-define patches of wetland.
On a notoriously complex issue concerning the scope of the federal Clean Water Act, Jackson seemed eager to get to the nub of the problem, at one point saying "let me try to bring some enlightenment to it." Later on, she gave a polite apology for asking a follow-up question after a lengthy back-and-forth with a lawyer for Idaho landowners Chantell and Mike Sackett, who want to build on a property that the government has deemed to be a wetland.
Jackson's line of questioning was similar to that of the court's two other liberal justices, Elena Kagan and Sonia Sotomayor.
Nominated by President Joe Biden, Jackson was sworn into office over the summer. The oral argument also marked the first time in history that four women justices sat together on the bench.
Jackson replaced fellow liberal Justice Stephen Breyer, who retired in June. She is one of three liberals on the nine-justice court, which looks set to continue its conservative trajectory in the new term.
The court's conservative majority is skeptical of broad assertions of federal agency power, which could align with the challengers' arguments being made in Monday's case. In the court’s term that ended in June, the justices issued a major ruling that limited the ability of the Environmental Protection Agency (EPA) to tackle climate change by regulating carbon emissions under the Clean Air Act.
The same agency is in front of the court this time, with the the Clean Water Act, aimed at protecting water quality, now under the microscope.
It also sees the return of the Sacketts to the Supreme Court after the justices ruled in their favor in an earlier case in 2012. Both cases involve the same underlying dispute: the Sacketts’ effort to build a property on land they own in Priest Lake, Idaho, parts of which the EPA has deemed to be a protected wetland, meaning the land is subject to federal jurisdiction and building on it requires a permit.
The first case concerned whether the Sacketts could challenge an EPA compliance order in court after they had filled the affected area with gravel and sand without obtaining a permit. The fight, which began in 2007, continued over whether the land was a wetland at all.
The Sacketts turned to the Supreme Court for a second time after the 9th U.S. Circuit Court of Appeals, headquartered in San Francisco, ruled last year in favor of the federal government in its determination that the area did constitute a wetland.
The law on how to define a wetland — of key interest to property developers and other business interests — has long been muddled and was not resolved when the Supreme Court in 2006 decided an earlier case on the issue. Then, four justices said the Clean Water Act covered land with a “continuous surface connection” to a waterway but there was not a clear majority. Justice Anthony Kennedy, who provided the fifth vote in the 5-4 ruling, came up with his own test, which said the law provided jurisdiction over wetlands with a “significant nexus” to a waterway. The new case gives the court a chance to revisit the earlier ruling, with some observers believing the majority may embrace the more stringent test proposed by the four justices in 2006.
The justices on Monday appeared no closer to resolving that confusion. Although the conservative justices seemed sympathetic to the Sacketts, the difficulty of coming up with a test to apply nationwide was not lost on them.
"This case is going to be important for wetlands throughout the country and we have to get it right," said conservative Justice Brett Kavanaugh, who appeared somewhat amenable to a middle-ground solution.
Much of the debate centered on how to define when a wetland is "adjacent" to a navigable waterway, and therefore subject to Clean Water Act jurisdiction.
"Adjacency is not the same as touching," Kagan said, echoing a similar remark made by Jackson.
Kavanaugh noted that the government has since 1977 interpreted wetlands jurisdiction as extending beyond certain barriers, including dams, berms and levies.
"So why shouldn't we read 'adjacent' wetland in the statute to mean what EPA has said?" he asked.
Conservative justices appeared concerned about how under the current approach individual landowners can figure out for themselves in advance whether their land is a wetland, especially as they could face civil or even criminal penalties for building without a permit.
Justice Neil Gorsuch probed Justice Department lawyer Brian Fletcher on how far away from a waterway a wetland could be located for the government to lose jurisdiction.
Fletcher said three miles and probably two miles would be too far for jurisdiction, but declined to say whether it could extend to one mile.
"So, if the federal government doesn't know, how is a person subject to criminal time in federal prison supposed to know?" Gorsuch responded.
Successive presidential administrations have sought to bring clarity to the law, with Democrats generally favoring greater federal power and Republicans, backed by business interests, saying that Clean Water Act jurisdiction should be limited.
The Biden administration is currently finalizing a new federal rule, which should be completed by the end of the year, Fletcher told the justices.
The new Supreme Court term includes major cases that could end the consideration of race in college admissions and make it easier for Republicans to impose voting restrictions ahead of the 2024 presidential election. With a solid 6-3 conservative majority in place, Jackson is unlikely to be a key vote in many of the major cases.
For the first time since the Covid pandemic hit Washington in March 2020, members of the public were allowed into the packed courtroom for Monday’s case as the risk-averse court returns somewhat to pre-pandemic procedures, even if the public’s access to the building remains limited.
The justices returned to action after a tumultuous end to the court’s most recent term in which the conservative majority overturned the landmark Roe v. Wade ruling that gave federal protection to abortion rights, leading some to question the court’s legitimacy.
