Several conservative justices expressed concern about the law’s broad reach. The court’s liberals seemed focused on finding a compromise.
, allowing them to immediately challenge the EPA order before the agency took enforcement action. Alito noted in a concurring opinion that the scope of the law is “notoriously unclear” and expressed sympathy for the homeowners.
The justices are now reviewing a 2021 ruling from the U.S. Court of Appeals for the 9th Circuit, which sided with the EPA. The appeals court said the record shows that water from the wetlands, which filter out pollutants, makes its way into the lake via a tributary and creek. The opinion quotes an EPA memo, which found the wetlands “especially important in maintaining the high quality of Priest Lake’s water, fish, and wildlife.
A key question for the justices is how to determine how far from the water’s edge the Clean Water Act applies. The court’s three liberal justices along with Kavanaugh emphasized in their questions Monday that Congress clearly intended to regulate wetlands “adjacent” to regulated waters.Kavanaugh noted in questioning the Sacketts’ attorney that presidents in both political parties had interpreted the law to cover neighboring wetlands.The court failed to reach consensus in a 2006 case.
The Sacketts’ attorney Damien M. Schiff asked the court to embrace the narrow interpretation proposed by the late conservative Justice Antonin Scalia and joined then by three other justices. Scalia’s definition limits regulation to wetlands with a direct “continuous surface connection” to “navigable waters.”last week that when the justices agree to take a case for the second time the court is inclined to “finish the job that it started the first time around.
Because “a lot of the current justices think pretty highly of Scalia” and there was previously “some sympathy for the homeowner, this sets up pretty well for the Sacketts.”
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