The Supreme Court is curtailing the federal government’s power to protect some wetlands.
FILE - A road bisects a wetland on June 20, 2019, near Kulm, N.D. The Supreme Court has made it harder for the federal government to police water pollution. The decision from the court on Thursday, May 25, 2023, strips protections from wetlands that are isolated from larger bodies of water. Its the second ruling in as many years in which a conservative majority has narrowed the reach of environmental regulations.
Some experts say the battle over wetlands now may shift to states, with red and blue states writing laws that take dramatically different approaches. “Now that the case is finally over ... they'll be able to make reasonable use of their property," said Damien Schiff of the Pacific Legal Foundation, which represented the couple.
The court jettisoned a 17-year-old opinion by their former colleague, Anthony Kennedy, describing covered wetlands as having a “significant nexus” to larger bodies of water. It had been the standard for evaluating whether permits were required for discharges under the 1972 landmark environmental law. Opponents had objected that the standard was vague and unworkable.
The Biden administration regulations replaced a Trump-era rule that federal courts had thrown out and environmentalists said left waterways vulnerable to pollution. Despite their vital role in blocking flood waters and filtering out pollutants, those wetlands may lose protection because they aren’t directly connected to the river, he said in an opinion that concurred on the Sackett case but disagreed significantly with the majority on the broader issues.
And those who are discussing settlements for wetland damage or building new ones to compensate for losses might back out, said Alpert, the Boston attorney.
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