The Constitutional BackgroundThe Constitution granted Congress the power “to regulate Commerce ... among the several States.” The historical record shows this included authority over navigation (pdf). Authority over navigation, in turn, included the power to govern navigable waters. Navigable waters encompass, besides seas and oceans, those lakes and rivers capable of carrying ships for transporting goods.
Federal InterventionNevertheless, during the administration of President Richard Nixon, Congress adopted several environmental statutes inserting the federal government deeply into land and water issues. Among these were the Clean Air Act (1970) and the Clean Water Act (1972).
The Clean Water Act regulates the discharge of pollutants into “navigable waters.” Standing alone, that doesn't create a major constitutional problem. The problem arises because the statute defines “navigable waters” as “the waters of the United States.”
At first glance, “waters of the United States” (often abbreviated “WOTUS”) might mean every drop of H2O in the country. However, Justice Samuel Alito’s majority opinion in the Sackett case points out that “waters of the United States” likely was intended as an alternative term for navigable lakes and streams.
But the agencies responsible for enforcing the Clean Water Act—the Army Corps of Engineers and the EPA—construed WOTUS to embrace almost all standing or running American water anywhere, except for mud puddles and swimming pools. The reasons the agencies have offered for this conclusion have shifted over time.
Armed with this expansive “interpretation,” the agencies crowded out state regulators. They repeatedly threatened, harassed, and punished landowners for changing the configuration of their property, even when their property was nowhere near a navigable stream.
- The Sacketts’ lot lies beside a 30-foot-wide road;
- on the other side of the road is a water ditch;
- this ditch flows into a non-navigable creek;
- this creek flows into Priest Lake; and
- although Priest Lake is located wholly within the State of Idaho, the EPA designated it as navigable—not because it's a trade corridor but because out-of-state tourists sometimes use it.
The Court’s DecisionAll nine justices agreed that the EPA had exceeded its power by attempting to control the use of the Sacketts’ land.
In addition, Justice Alito’s majority opinion held that the phrase “waters of the United States” means only defined bodies of water—such as lakes and streams—and those wetlands that so border them that their waters’ surface merges with the surface of the lake or stream.
Four justices (Brett Kavanaugh, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) thought the EPA could regulate a wetland if it's in the same general vicinity as a lake or stream.
Court’s Discrimination in Favor of Federal LawsFor many years, the court has been ready and willing to strike down state laws it finds unconstitutional. But when it considers the constitutionality of federal laws, it becomes very deferential.
But in the Sackett case, the court preserved in narrower form a clause in a federal statute the EPA employs to impose steep criminal punishments and recurring civil penalties of up to $60,000 each day.
What About Pollution?Even the court’s mild resolution provoked howls of protest from apologists for federal power. One group, for example, called the decision “devastating.”
This hyperbole thrives on ignorance. Unfortunately, Justice Alito’s and Justice Kagan’s opinions contributed to that ignorance by attributing much American environmental success to the Clean Water Act.
The primary reason is that as a population’s wealth and prosperity increase, so do demands for a cleaner environment. (Struggling and starving people rarely care about the environment.) By the 1960s, Americans were demanding that states and the private sector clean up the environment, and the states and private sector were responding.
Some cynics have observed that new federal interventions seldom are responses to real needs. Federal intervention usually comes only after it becomes clear that the states or the market have solved, or are about to solve, a purported problem. Federal politicians and bureaucrats intervene because by doing so they can crowd out the market and the states, enabling them to take credit for what would have happened anyway.
Unless, of course, federal action makes matters worse, as in the case of health care. Then federal politicians and bureaucrats claim to need even more power to “cure” the problem they've aggravated.