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Kavanaugh joins Supreme Court liberals in disagreeing with new wetlands test

By Zach Schonfeld,

6 days ago

The Supreme Court’s major wetlands case on Thursday was technically unanimous as all nine justices ruled against the Environmental Protection Agency (EPA).

But beneath the surface of the Idaho landowners’ win , the court’s three liberals and conservative Justice Brett Kavanaugh joined to push back on how far the majority narrowed which wetlands are protected.

Writing for the 5-4 majority, conservative Justice Samuel Alito ruled that eligible wetlands must have a “continuous surface connection” with a protected body of water, making the two areas “indistinguishable” from one another.

That narrow definition handed a win to Michael and Chantell Sackett, whom the EPA had previously prevented from building a home on land they owned, and it more broadly limited the EPA’s authority in terms of where it can implement safeguards.

“By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States,” Kavanaugh wrote in a separate opinion.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, the court’s three liberals, joined Kavanaugh’s opinion, which criticized the majority’s test as “atextual.”

The daylight between the two sides concerned wetlands that are separated from a covered water only by a manmade dike or barrier, natural river berm or a beach dune. Kavanaugh contended that Congress wrote the Clean Water Act to protect those, as well.

“I would stick to the text,” Kavanaugh wrote. “There can be no debate, in my respectful view, that the key statutory term is ‘adjacent’ and that adjacent wetlands is a broader category than adjoining wetlands. To be faithful to the statutory text, we cannot interpret ‘adjacent’ wetlands to be the same thing as ‘adjoining’ wetlands.”

Kagan also authored a separate opinion, joined only by the court’s other two liberals, forcefully pushing back on the majority’s test. Alito, meanwhile, said the increased protections read the statute too broadly and the separate opinions “cannot be taken seriously.”

“The EPA argues that ‘waters’ is ‘naturally read to encompass wetlands’ because the presence of water is ‘universally regarded as the most basic feature of wetlands’ … but that reading proves too much. Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as ‘waters,'” Alito wrote.

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