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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Just last month, President Joe Biden signed an executive order

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Speaker 2: aimed at advancing environmental justice and curbing the climate crisis

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Speaker 2: by creating a new Office of Environmental Justice.

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Speaker 3: Including the right to clean air, to drink clean water,

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Speaker 3: and to be treated with dignity to all of you.

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Speaker 3: We're making progress, but there's much more to do to

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Speaker 3: finish the job, and.

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Speaker 2: The Supreme Court has now made finishing that job more

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Speaker 2: difficult by limiting the Clean Water Act and slashing the

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Speaker 2: power of federal regulators to protect the country's wetlands, in

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Speaker 2: a blow for environmentalists and the administration. While all the

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Speaker 2: justices agreed that an Idaho couple should win their fifteen

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Speaker 2: year battle to build a house on land federal regulators

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Speaker 2: say is protected wetlands, they divided on how far to

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Speaker 2: go in limiting the authority of the EPA. The majority

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Speaker 2: opinion of five conservative justices established a new test, saying

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Speaker 2: that wetlands are covered by the Clean Water Act only

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Speaker 2: if they have a continuous surface connection to major waterways.

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Speaker 2: Those justices, like Neil Gorsich, expressed concerns about the current test,

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Speaker 2: questioning the Deputy Solicitor General Brian Fletcher during the oral arguments.

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Speaker 4: How does anyone know, any reasonable person know within a

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Speaker 4: maybe several hundred square miles in a watershed that drains

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Speaker 4: into a body of water that is water the United

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Speaker 4: States know whether or not their land is adjacent to.

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Speaker 5: So I think we are talking about adjacency, and that

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Speaker 5: may not be something that gives you bright line rules,

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Speaker 5: but it rules out things that are many miles away.

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Speaker 4: Does it? Are you sure the EPA would take that view?

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Speaker 2: But Justice Brett Kavanaugh, who joined the liberal justice, is

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Speaker 2: in disagreeing with the majority's new test question. Why the

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Speaker 2: court should deviate from the test used for the last

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Speaker 2: forty six years?

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Speaker 5: And my understanding is every administration since nineteen seventy seven,

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Speaker 5: the correct me if I'm wrong, has stuck with adjacent

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Speaker 5: wetland includes those wetlands separated by burms, Dude's dykes, or

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Speaker 5: levies from the navigable water. So why shouldn't we read

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Speaker 5: adjacent wetland in the statute to mean what EPA had said?

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Speaker 2: Joining me is an expert in environmental law. Pat Parento,

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Speaker 2: a professor at the Vermont Law and Graduate school. So

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Speaker 2: explain what the Supreme Court did here.

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Speaker 1: Explain the ruling so in Sacket two. Because this is

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Speaker 1: the second round for the Sacket case, Justice Alito wrote

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Speaker 1: the majority opinion in which he has adopted a new

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Speaker 1: tests for determining the geographic scope of the Clean Water Act,

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Speaker 1: and it is of his own device. It's not based

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Speaker 1: on the text of the Statute. It's not based on

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Speaker 1: the historical way that the Statute has been interpreted, not

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Speaker 1: only by the agency's EPA corp of Engineers, but also

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Speaker 1: by the courts lower courts as well as the Supreme Court.

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Speaker 1: And it's an interpretation that has been in existence for

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Speaker 1: over fifty years, spanning eight different administrations. So it's a

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Speaker 1: startling reinterpretation of the Clean Water Act. And it does

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Speaker 1: at least two things. One, it says that for streams

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Speaker 1: and rivers and lakes, they must be relatively permanent bodies

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Speaker 1: of water like big rivers, big lakes, and the other

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Speaker 1: and then any wetlands that will be protected under the

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Speaker 1: Clean Water Act must abut or adjoin those traditional sort

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Speaker 1: of navigable waters. So it's going to be hard to

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Speaker 1: estimate the full scope of the damage that this opinion

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Speaker 1: will do to protection of wetlands, protection of water quality,

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Speaker 1: protection of fisheries, et cetera. But it's for sure a

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Speaker 1: devastating blow to conservation of aquatic natural resources and water quality.

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Speaker 1: That much we know for sure. Devastating.

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Speaker 2: So pat what was the test before to the courts

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Speaker 2: we're using.

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Speaker 1: It's been changed over time. The most recent interpretation that

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Speaker 1: the agencies, EPA and the CORE have been using has

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Speaker 1: been what I would call a blend of Justice Kennedys

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Speaker 1: of opinion in the infamous Rapanos case, requiring a significant

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Speaker 1: nexus between wetlands and other water bodies. That's one part

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Speaker 1: of the test, and then the other part took from

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Speaker 1: Justice Scalia's what we call plurality opinion in Rapanos, this

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Speaker 1: concept of a relatively permanent body of water relating to

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Speaker 1: tributaries and streams. So it's complicated. It's a two part test.

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Speaker 1: Is the tributary a water of the United States? And

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Speaker 1: then is the wetland adjacent to that water body? And

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Speaker 1: does it have a significant nexus to the water body.

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Speaker 1: That's an ecological term. You know, how much do wetlands

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Speaker 1: do to soak up pollutants and buffer streams from pollution?

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Speaker 1: And how much do they control floods and how much

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Speaker 1: do they provide habitat that sort of thing. So Kennedy's

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Speaker 1: was very much an ecological test, and it was adopted

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Speaker 1: by all of the lower courts after Rapanos, all of them,

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Speaker 1: all ten circuit courts that Kennedy's significant nexus test was

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Speaker 1: at least the principal test that you look to. So

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Speaker 1: the corp of Engineers and EPA, as I said, tried

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Speaker 1: to blend these two competing tests Gleah Kennedy in the

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Speaker 1: rule that they just adopted. But now that's out the

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Speaker 1: window because the Court under Alito has now said you

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Speaker 1: cannot consider significant nexus that has nothing to do with

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Speaker 1: the scope of the Clean Water Act.

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Speaker 2: And the Court was unanimous in siding with the landowners

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Speaker 2: here that the specific wetlands shouldn't be subject to the

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Speaker 2: Clean Water Act regulation and that the court's prior test

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Speaker 2: should no longer determine the scope of the law. Isn't

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Speaker 2: that surprising that it was?

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Speaker 1: No, Yes, it would be surprising to most observers. Here's

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Speaker 1: the explanation that Kagan, Sotomayor, and Jackson gave, and they

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Speaker 1: also joined with Kavanaugh, which we should return to in

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Speaker 1: a moment, and their rationale was, you know what, the

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Speaker 1: significant nexus tests may sound nice, but it's not workable.

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Speaker 1: Landowners can't tell when they've got wetlands. We need a

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Speaker 1: concept that's at least a little crisper, a little clearer

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Speaker 1: than just this frankly pretty convolution analysis of what constitutes

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Speaker 1: significant nexus. So the sort of liberal wing of the

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Speaker 1: Court was more inclined to agree that the Ninth Circuit

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Speaker 1: got it wrong, and so we should reverse the Ninth

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Speaker 1: Circuit and we should reman the case like we do traditionally,

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Speaker 1: and we should provide some instructions, of course, to the

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Speaker 1: agencies as to how they should revive their regulations. But

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Speaker 1: we shouldn't go so far as the majority wants to

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Speaker 1: go to basically rewrite the statue and redraw the boundaries

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Speaker 1: all across the United States. The most striking thing about

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Speaker 1: this is you're talking about a tiny little wetland and

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Speaker 1: parcel of land in northern Idaho as the predicate for

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Speaker 1: designing this test that now will apply everywhere in the

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Speaker 1: United States in ways that are going to take a

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Speaker 1: long time to figure out.

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Speaker 2: As you mentioned, there was a concurring opinion by A.

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Speaker 5: Lane A.

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Speaker 2: Kagan that was joined by Justices Sonya Sotobayor and Katanji

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Speaker 2: Brown Jackson. Justice Kagan said the Court has appointed itself

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Speaker 2: as the national decision maker on environmental policy. Then there

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Speaker 2: was a concurring opinion by Justice Brett Kavanaugh, joined by

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Speaker 2: the Court's three liberals, in saying the decision will undercut

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Speaker 2: important environmental protections. But it sounded like these should be

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Speaker 2: more descents than concurrences.

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Speaker 1: They certainly were dissents from Alito's majority opinion on the

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Speaker 1: new test, no question, And I think it was striking

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Speaker 1: that Kavanaugh went so far in his quote concurring opinion

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Speaker 1: concurring in the judgment that the Ninth Circuit got it wrong.

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Speaker 1: That's what he was saying. But he went to extraordinary

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Speaker 1: lengths to take the Alito opinion apart piece by piece.

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Speaker 1: His basic point was, we've had forty five years of

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Speaker 1: history here of how this text of the statute should

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Speaker 1: be interpreted, and you're coming out of nowhere with this idea.

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Speaker 1: But that's all wrong. And it's up to the Court

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Speaker 1: in the Sacket case to decide in the first instance,

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Speaker 1: fifty years later, how much water in the United States

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Speaker 1: is protected. And he took specific issue with just about

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Speaker 1: each and every point, which we don't have time to

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Speaker 1: go over. But the one thing for sure, he said,

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Speaker 1: is adjacent wetlands, which is kind of the concept that

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Speaker 1: the agencies are using to regulate wetlands and adjoining. They're

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Speaker 1: not the same. You can look at any dictionary off

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Speaker 1: the shelf and see that adjoining an adjacent are not

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Speaker 1: the same. It sounds trivial, it sounds semantical, but it

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Speaker 1: has huge implications. You know, some of the studies that

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Speaker 1: have been done say, if you're not going to protect

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Speaker 1: wetlands that are adjacent, meaning neighboring close to, you could

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Speaker 1: end up eliminating protection for half of the wetlands in

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Speaker 1: the United States because they don't have, as a Leito

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Speaker 1: put it, they don't have the kind of indistinguishable relationship

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Speaker 1: to surface water or that he's demanding. If you think

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Speaker 1: about the Everglades, the entire Everglades, for example, is that

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Speaker 1: indistinguishable from the oceans or from the rivers. And you

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Speaker 1: can go across the country into the arid parts of

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Speaker 1: the country and talk about are these wetlands that are

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Speaker 1: not always wet. They vary between dry and wet periods.

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Speaker 1: What makes them quote indistinguishable? You see, there's nothing in

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Speaker 1: the law, in the statute that talks about indistinguishable. There's

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Speaker 1: nothing in the history of the way the law has

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Speaker 1: been interpreted it talks about indistinguishable. And yet to Aledo,

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Speaker 1: that's the test.

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Speaker 2: So this is the latest in a line of Supreme

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Speaker 2: Court rulings that have restricted the authority of federal regulators

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Speaker 2: and also that have been anti environmental.

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Speaker 1: Shall we say, oh, for sure, this is the Alito court,

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Speaker 1: And you know the tone of his decision, it has

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Speaker 1: echoes of the Dobbs decision in terms of it has

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Speaker 1: an element of bitterness to it that is disturbing, you know.

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Speaker 1: I mean, Kavanaugh is certainly no liberal. But when you

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Speaker 1: read Kavanaugh's kind of careful, meticulous analysis of text and

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Speaker 1: history and all that, it just stands in stark contrasts

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Speaker 1: to Alito, who just comes right out of the box

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Speaker 1: talking about how this is having severe impacts on private property,

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Speaker 1: how it's threatening ordinary citizens with criminal prosecution. I mean,

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Speaker 1: we don't have any of that in the history of

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Speaker 1: the way the Clean Water Act has been implemented. Of course,

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Speaker 1: there have been some criminal prosecutions, usually for really serious violations,

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Speaker 1: intentional deliberate violations of you know, the kinds of actions

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Speaker 1: that do deserve criminal prosecution. But there's never been an

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Speaker 1: instance where the Clean Water Act has taken anybody's private property. None.

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Speaker 1: And so this idea of creating you know, this I

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Speaker 1: don't know, horror story from regulating water quality is just

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Speaker 1: off the chart. So that tells me there is some

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Speaker 1: hostility in this. I mean. The big surprise to me

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Speaker 1: and to others was Justice Barrett, who was very critical

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Speaker 1: at the oral argument and asking all the right questions

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Speaker 1: about why shouldn't we look at this adjacency test more broadly,

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Speaker 1: Maybe not as broadly as the agencies are talking about,

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Speaker 1: but certainly not as narrowly as what the ultimate opinion

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Speaker 1: in the case came out. But she, for whatever reason,

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Speaker 1: Junior Justice maybe went along with the Alito approach. So

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Speaker 1: it's the Alito court that's what we're dealing with. And

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Speaker 1: we don't know what's next, but one thing's for sure.

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Speaker 1: If review is granted in an environmental case, the environment's

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Speaker 1: going to lose in this court.

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Speaker 2: Biden criticized the ruling, saying it defies the science up

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Speaker 2: bands the legal framework that's protected America's waters and warned

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Speaker 2: that it will take our country backwards, promised quote to

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Speaker 2: use every legal authority we have to protect Americans water.

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Speaker 2: What can the Biden administration do Nothing.

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Speaker 1: All it can do is try to interpret this decision

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Speaker 1: to limit the damage as much as possible. But even

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Speaker 1: that's going to be very difficult. And if anyone thinks

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Speaker 1: that the states are going to fill the gap, I've

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Speaker 1: got bad news for them. Twenty eight states have laws

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Speaker 1: on the books that say their laws can be no

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Speaker 1: stricter than federal. So the minute you shrink federal protection

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Speaker 1: for streams and wetlands, you shrink it in those twenty

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Speaker 1: eight states. That's more than half the states in the country,

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Speaker 1: and most of them are Western, most of them are

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Speaker 1: read no surprise, they're the same states that have been

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Speaker 1: attacking the Biden rule and the Obama rule and all

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Speaker 1: the other rules. And the Congress has shown no interest

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Speaker 1: whatsoever in dealing with this problem, or updating the Clean

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Speaker 1: Water Act, or maybe finding a different way to protect

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Speaker 1: water quality in wetlands. If a conservative Congress doesn't like

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Speaker 1: regulations find then how are you going to protect wetlands?

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Speaker 1: Because if you think about the two primary environmental threats

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Speaker 1: that we're facing right now in the world. It's climate

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Speaker 1: change and biodiversity loss. And then if you think about wetlands,

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Speaker 1: they're critical to both. Wetlands store carbon, wetlands store floodwaters.

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Speaker 1: Wetlands protect endangered species. Wetlands are all that we need

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Speaker 1: for resilience to what's coming with climate change. And as

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Speaker 1: I say, wetlands are critical habitat for over half of

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Speaker 1: the listed endangered species, so they're critical to biodiversity. So

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Speaker 1: with one blow, this court has struck at the very

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Speaker 1: natural resource that we need to deal with these overwhelming

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Speaker 1: problems we're facing.

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Speaker 2: I know you said it'll take a while before we

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Speaker 2: realize the effects of this decision, but just tell us

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Speaker 2: some of the effects that you can see right now.

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Speaker 1: I think the studies that have shown that up to

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Speaker 1: let's put it this way, up to fifty percent of

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Speaker 1: the nation's wetlands. And remember, we've already lost fifty percent

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Speaker 1: of our historic weapons, so of the remaining wetlands, up

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Speaker 1: to fifty percent are certainly at risk of losing entire

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Speaker 1: protection as a result of this decision. Whether it's you know,

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Speaker 1: right up to fifty percent or not, we know it's

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Speaker 1: going to be millions of acres, and we know it's

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Speaker 1: going to be thousands of miles of streams. Ephemeral streams.

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Speaker 1: These are the streams in the West that only flow

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Speaker 1: in response to major rain events. Those are not going

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Speaker 1: to be protected. Intermittent streams that only flow for portion

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Speaker 1: of the year are at risk. Maybe the Biden administration

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Speaker 1: can come up with the rule that will protect those streams.

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Speaker 1: We don't know. We'll have to wait and see. But

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Speaker 1: you know, the best case is that we are going

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Speaker 1: to see the loss of protection, the loss of regulation

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Speaker 1: of sources of pollution that the Clean Water Act was

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Speaker 1: designed to address. It was all about addressing pollution at

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Speaker 1: its source and preventing you know, degradation from occurring downstream

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Speaker 1: from upstream sources of pollution. And the Supreme Court has

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Speaker 1: made that goal almost unattainable as a result of this decision.

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Speaker 2: And could this decision have effects beyond the Clean Water Act?

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Speaker 1: It could because Alito has coined yet another new test

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Speaker 1: for interpreting statutes in West Virginia. Remember, we got major

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Speaker 1: question doctrines. So whenever a regulation in that case, you know,

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Speaker 1: regulation of power plant greenhouse gas emissions, you know poses

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Speaker 1: a significant economic cost to the nation. That means that

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Speaker 1: the agency gets no deference. That means that the court

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Speaker 1: will decide what the law, the statute means, what the

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Speaker 1: text means. So that was West Virginia major question. Now

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Speaker 1: we've got a new test where Alito is saying Congress

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Speaker 1: has to be extraordinarily clear to grant this kind of

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Speaker 1: authority that affects not only federal state relationships in terms

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Speaker 1: of managing water quality, but also private property. That's a

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Speaker 1: whole new wrinkle in statutory interpretation where now if an

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Speaker 1: agency's rule impacts private property, Alito is saying Congress had

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Speaker 1: better be extraordinarily that's the word he used. Clear about that.

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Speaker 1: I mean, we just haven't had that kind of framework

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Speaker 1: for drafting legislation in the fifty year history of environ

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Speaker 1: modern environmental law in this country. So what that means

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Speaker 1: for future cases is also a big question mark. Like

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Speaker 1: I said, you know, if you're an environmental rule, the

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Speaker 1: last place in the world you want to be is

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Speaker 1: on the docket of the United States Supreme Court.

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Speaker 2: That's certainly been the case for many years. Thanks so much, Pat.

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Speaker 2: That's Professor Pat Parento of the Vermont law and graduate school.

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Speaker 2: And that's it for this edition of The Bloomberg Law Show.

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